PrawfsBlawg

13th Annual Junior Federal Courts Workshop

The George Washington University Law School will host the 13th Annual Junior Faculty Federal Courts Workshop on March 8-9, 2024. The workshop pairs a senior scholar with a panel of junior scholars presenting works in progress. It is open to untenured and recently tenured academics who teach and write in the areas of federal courts, civil rights litigation, civil procedure, constitutional law, and other related topics. The program is also open to scholars who wish to attend, read, and comment on papers but not present. There is no registration fee.

The conference will begin on the morning of Friday, March 8, and conclude by early afternoon on Saturday, March 9. Each panel will consist of three to four junior scholars, with a senior scholar commenting on the papers and leading a group discussion.

The workshop will take place at the George Washington University Law School, which is located in the heart of Washington, DC. GW will provide lunches and dinners for those attending the workshop, but attendees must cover their own travel and lodging costs. A discounted block of rooms will be made available at a nearby hotel.

Those wishing to present a paper must submit an abstract of no more than two pages to [email protected] by Friday, November 17, 2023.

Questions about the conference may be directed to Professor Chas Tyler at [email protected].

Rebuffing Consent-Based Jurisdiction Over the PLO for Overseas Terrorist Acts

The following post is by Rocky Rhodes (South Texas) and Andra Robertson (Case Western), who have been writing and blogging about consent-based jurisdiction. They covered Mallory v. Norfolk Southern Railway for us last Term. We invited them to write a series of posts in the coming days on two recent Second Circuit cases, the first to consider Mallory's scope.

Procedural and transnational scholars have an abundance of puzzles to unravel in the Second Circuit’s recent decisions holding the Fifth Amendment’s Due Process Clause prohibited the “deemed consent” provisions of the federal Promoting Security and Justice for Victims of Terrorism Act of 2019 (PSJVTA) from establishing personal jurisdiction over the Palestine Liberation Organization (PLO) and the Palestinian Authority (PA) for supporting overseas terrorist acts. The cases are the first federal circuit court decisions interpreting in depth the Supreme Court’s decision this summer in Mallory v. Norfolk Southern Railway Co., which held that Pennsylvania’s corporate registration scheme (which specifies that corporations registering to do business submit to general personal jurisdiction in Pennsylvania for any and all suits) did not violate due process. The Second Circuit’s decisions also rest on questions that have long divided scholars and courts on the transnational scope of the Fifth Amendment’s Due Process Clause and whether the PLO and PA should be afforded due process protections from the adjudicative authority of United States courts. We are grateful to Howard for giving us an opportunity for posting our thoughts and analysis in unpacking some of these issues.

The Suits Against the PLO and the PA

The primary and signed Second Circuit opinion, Fuld v. Palestine Liberation Organization, arose from the fatal stabbing of U.S. citizen Ari Yoel Fuld in a 2018 terrorist attack outside a shopping mall in the West Bank. His widowed spouse and his children filed suit in the Southern District of New York against the PLO, which conducts Palestine’s foreign affairs and serves as a Permanent Observer to the United Nations on behalf of Palestinians, and the PA, which is the non-sovereign and interim governing body of parts of the Gaza Strip and the West Bank. The Fulds allege that, because the PLO and PA incentivized and assisted the terrorist act that led to the fatal stabbing, monetary damages should be awarded against both defendants under the remedial provisions of the Anti-Terrorism Act (ATA), which authorize compensation to United States nationals injured “by reason of an act of international terrorism” from “any person who aids and abets, by knowingly providing substantial assistance” to the perpetrator of the attack.

But the PLO and the PA moved to dismiss the Fulds’ suit for lack of personal jurisdiction. Although Congress enacted the PSJVTA specifically to authorize jurisdiction over the PLO, the PA, and any successor or affiliated entities in suits under the ATA in federal court, the defendants urged that the PSJVTA’s jurisdictional provisions deeming their statutorily defined post-enactment conduct as a “consent” to personal jurisdiction conflicted with the dictates of the Fifth Amendment’s Due Process Clause.

Congress enacted the PSJVTA in response to the success of the PLO and the PA in having other overseas terrorist-activity suits under the ATA dismissed on jurisdictional grounds. One of those cases, Waldman v. Palestine Liberation Organization, was also before the Second Circuit, now for the third time, and was decided on the same day as Fuld. Almost twenty years ago, the Waldman plaintiffs had likewise sued the PLO and the PA under the ATA for money damages for providing material support for terrorist attacks. Although the Waldman plaintiffs eventually obtained a substantial jury verdict, the Second Circuit reversed in Waldman I, 835 F.3d 317 (2d Cir. 2016), on the basis that the PLO and the PA were not amenable to jurisdiction. While acknowledging that sovereign foreign governments lacked due process rights, the Second Circuit concluded that, because neither the PLO nor the PA were recognized by the United States as sovereign states, they were protected by personal jurisdiction due process limits, which are “basically the same under both the Fifth and Fourteenth Amendments.” The only relevant difference, according to the Second Circuit, is that the Fifth Amendment allows the consideration of the defendant’s contacts throughout the United States, rather than just with a particular state.

In the absence of consent, these jurisdictional limits require that foreign defendants such as the PLO and the PA have the necessary contacts with the United States to support general or specific jurisdiction. General jurisdiction exists where the defendant is “at home,” allowing plaintiffs to bring all claims, wherever they arose. But the PLO and the PA are “at home” only in Palestine, the headquarters and nerve center of both entities. Specific jurisdiction occurs when the defendant establishes purposeful contacts with the forum and the dispute “arises from or relates to” the defendant’s forum contacts in a manner that satisfies certain standards of fairness. But the overseas terrorist activities of the PLO and the PA were neither related to nor aimed at the United States—the random attacks only affected U.S. citizens because they were victims of indiscriminate violence abroad, which the Second Circuit held in Waldman I was not sufficient for specific jurisdiction.

Statutory Jurisdictional Consent

Congress initially responded to Waldman I, and similar holdings in the District of Columbia Circuit dismissing cases under the ATA against the PLO and the PA for lack of personal jurisdiction, with the Anti-Terrorism Clarification Act of 2018 (ATCA). The ATCA provided that if, after more than 120 days of the statute’s enactment, a defendant accepted certain forms of assistance from the United States or maintained an office within the jurisdiction of the United States under a waiver of a federal statute barring the PLO from operating such an office, the defendant would be deemed to have consented to personal jurisdiction in an ATA suit, regardless of when the international terrorism occurred or suit was filed. But, within the 120-day period, the PLO and the PA formally terminated their acceptance of any relevant assistance from the United States and shut down the PLO’s only office operating pursuant to a federal statutory waiver. Based on these actions, neither of the ATCA’s predicates were met. The Second Circuit in Waldman II thus refused to recall its mandate from Waldman I that dismissed the suit for lack of personal jurisdiction. See Waldman v. Palestine Liberation Org., 925 F.3d 570 (2d Cir. 2019) (per curiam), cert. granted, judgment vacated sub nom. Sokolow v. Palestine Liberation Org., 140 S. Ct. 2714 (2020) (mem.).

While petitions for writs of certiorari were pending before the Supreme Court in Waldman II and a case from the D.C. Circuit, Congress tried again for a consent-based solution, this time with the “Promoting Security and Justice for Victims of Terrorism Act of 2019.” The PSJVTA, which applies just to the PLO, the PA, and successor or affiliated entities, deems that those entities consent to personal jurisdiction if, after a specified number of days from the statute’s enactment, they either (1) make a direct or indirect payment to an imprisoned terrorist or a member of his family after his death, or (2) conduct activities while physically present in the United States or maintain any facilities or establishments within the United States other than those devoted exclusively to conducting official business of the United Nations or related to engagements with United States officials or legal representation. Congress provided that this new act should “be liberally construed to carry out the purposes of Congress to provide relief for victims of terrorism” and should apply to “any case pending on or after August 30, 2016,” which meant it applied to both the Waldman and Fuld litigation.

Congress thus sought in the PSJVTA to rely on a third pathway to personal jurisdiction: consent. Defendants may consent to personal jurisdiction, either by agreement or litigation conduct, in a forum where they would not otherwise be subject to personal jurisdiction. As we have discussed previously on Prawfs, the Supreme Court held in Mallory this summer that the Due Process Clause was not violated by Pennsylvania employing a consent theory to uphold jurisdiction over an out-of-state corporation registering to do business in the state, even when that corporation would not otherwise be subject to either general or specific jurisdiction. Congress similarly sought to base jurisdiction over the PLO and the PA on their deemed consent to jurisdiction in engaging in certain specified activities.

But the PLO and the PA responded in Fuld and Waldman that the statutory jurisdictional predicates in the PSJVTA did not signal an acceptance of or an intent to submit to the jurisdiction of the United States. While a variety of legal arrangements may constitute the necessary consent, the defendants maintained that the predicate activities deemed “consent” under the PSJVTA were unrelated to the litigation or any submission to the judicial power of courts in the United States. In other cases relying on this jurisdictional basis, the defendant’s consent was predicated on either litigation-related conduct or the acceptance of some in-forum benefit conditioned on amenability to suit in the forum. But neither of those, the defendants argued, were present under the PSJVTA. First, foreign payments made to foreign nationals were neither an in-forum benefit nor related to litigation conduct; and second, the United States had not provided any forum benefit for the alleged United States activities of the PLO and the PA—rather, any such activities were illegal under federal law. This meant, according to the defendants, that the PSJVTA deemed activities consent in a manner that violated their due process rights.

The Second Circuit agreed. We will explore the Second Circuit’s rationale and its implications for the future of consent jurisdiction in our next post.

JOTWELL: Malveaux on Williams on sex-plus

The news Courts Law essay comes from Suzette Malveaux (Colorado) reviewing Jamillah Bowman Williams, Beyond Sex-Plus: Acknowledging Black Women in Employment Law and Policy, __ Employee Rts. & Emp. Pol. J. __ (forthcoming) on how courts deal with intersectional discrimination claims.

The Procedure of Trump (Updated)

Someone on the Civ Pro listserv suggested that one could structure a Civ Pro/Fed Courts course around Donald Trump and his orbit. Today's lesson: Removal and Remand.

1) Judge Jones remanded the Georgia prosecution of Mark Meadows, concluding that Meadows did not satisfy the requirements  of federal-officer removal because neither the charged conduct nor the alleged overt acts related to his office or his official duties (the court never reached colorable federal defense). The court emphasized the absence of an executive role in state elections and the Hatch Act's limitations on federal employees' partisan activities; these defined the outer limits of Meadows' job. Because Trump, and thus Meadows, cannot play a role in state elections, everything Trump did post-election (the Raffensberger phone call, etc.) involved the campaign and his efforts as a candidate, which the Hatch Act places beyond Meadows' official functions. Remand of a § 1442 removal is appealable, and Meadows has appealed.

2) A group of citizens, represented by C.R.E.W., filed suit in Colorado against Trump and Colorado Secretary of State Jena Griswold, seeking to exclude Trump from the ballot under § 3 of the 14th Amendment; Trump removed. Derek Muller and Will Baude agree on the predicted outcome--the federal court will remand because, while there is arguably jurisdiction under § 1331,  plaintiffs lack Article III standing. I will add the following:

    • I think the § 1331 argument is pretty strong. To arise under federal law under Grable & Sons, the federal issue must be necessarily raised, actually disputed, substantial (meaning important to the federal system at a whole), and capable of resolution in federal court without disrupting the federal-state balance approved by Congress. The first three seem obvious here. The last prong looks, in part, to how often the type of case will arise and how many similar cases will land in federal court. So a quiet title action turning on the validity of a federal tax lien will not come up that often; negligence claims based on drug misbranding and attorney malpractice arising from patent work will come up frequently. A dispute over candidate qualifications, especially whether a candidate engaged in insurrection or rebellion, seems more analogous to the tax lien case.

    • The case will be remanded on standing. An individual voter does not have more than a generalized grievance as to who appears on the ballot. Discussions of how to enforce § 3 never mention the several unsuccessful 2008 lawsuits by random citizens seeking to declare Obama ineligible as not born in the U.S.; all were dismissed for lack of standing.

    • The removal problem arises because of the plaintiff's procedural choice to include Trump as defendant. Why did they do that? The relief sought--a declaration of ineligibility and an injunction preventing his inclusion on the ball0t--runs against the secretary, not Trump. Trump has an interest in the case that the secretary may not adequately protect and he may be entitled or permitted to intervene to protect that interest. But there does not seem to be any reason to include him as a defendant in the first instance, which also gave him the power to remove.

Update: Trump filed an unopposed motion to remand after consulting with plaintiffs and recognizing that they lack standing and that removal was procedurally improper (Griswold did not join or consent to removal but had been served, contrary to Trump's initial representation).

3) Paulsen/Baude argue that § 3 is self-executing. The responses/critiques have confused effectiveness with enforcement. Their point is that § 3 creates an extant and enforceable legal obligation--one that does not require congressional action and has not been rendered a nullity by past congressional action or by desuetude. But, as with any legal provision, someone has to enforce that obligation, which usually leads to court; Paulsen/Baude do not claim otherwise. The question is how that occurs, which forms a big piece of Akhil Amar's two-part discussion with Baude and Paulsen). Paulsen in Part II gets to what I believe the right answer--some enforcement action by a state official, followed by some state-law proceeding in state court, followed by (often expedited) review to the state supreme court, followed by SCOTUS review. SCOTUS will get the last word, but the case arrives from state court (as Bush v. Gore did); none of this will begin--or be removed to--federal district court. And, again, that is perfectly fine and consistent with ordinary litigation. As with the controversy around S.B. 8, it is simply not true that the sole or necessary process for constitutional adjudication is an offensive EpY action in federal court.

Fugitive abortion seekers

The Washington Post reports on the latest exclusive-private-enforcement efforts from Mark Lee Dickson and Jonathan Mitchell--county and city ordinances prohibiting the use of local roads to obtain a legal out-of-state abortion, enforced through private lawsuits. I have questions.

How does private enforcement work here and how does a plaintiff have the basic information to bring suit? How can a plaintiff know what roads someone took to leave the state? Is he going to follow the woman and her driver through town (and when does that become stalking)? Are they given interdiction authority to find out where someone is heading (which strengthens the argument that "any person" acts under color)? Will local law enforcement help (which provides a target to sue in an offensive pre-enforcement action)? How can a plaintiff know they took these roads on the "abortion trip" as opposed to some other time. What constitutes one trip and how do you identify the purpose of that trip--if a person drives on those roads on Monday but does not leave the state for the procedure until Wednesday, has she used the roads to obtain the abortion?

The hard part for rights-holders facing these laws is creating litigation and the opportunity to challenge the law as a defense. Anti-choice activists do not want to sue, because they do not want to provide that opportunity, since the law is clearly constitutionally invalid. Someone needs to be Estelle Griswold. A friendly plaintiff action should be easy heree--"any person" includes anyone anywhere who knows the route a woman took out of state, including any person who supports abortion rights. Or how about a caravan of cars driving through town at once, daring someone in town to sue. Again, it takes time. But these ordinances seem to impose less of a chill than S.B. 8 did.

These private-enforcement laws (what Jon Michaels and David Noll call "vigilante federalism" and "subordination regimes") have, thus far, remained the province of red states. Despite suggestions about the rights blue states could target (something Rocky and I look at in a potential new paper), only California has done something, a half-hearted regulation of ghost guns and assault weapons. This story reminds of another feature of performative cultural-war legislation--the divide between states and municipalities. Red states (notably Florida and Texas, of course) use state law to override the local laws and policies of blue municipalities within the state--Ron DeSantis suspended two elected Democratic states attorneys; Florida's various anti-woke laws aim to override local school-board policies; Texas has stripped cities of the power to establish immigrant sanctuary cities. The Post article mentions blue-state conservative cities near a red-state border (for example, New Mexico cities near the Texas border or Illinois cities near the Missouri border) prohibiting abortion clinics from operating there, thus eliminating a destination for out-of-staters seeking services. Yet Democratic state governments have not taken similar steps to strip municipalities of their local power.

More merits and standing overlaps

The Third Circuit rejected a First Amendment challenge to Pennsylvania's anti-discrimination/anti-harassment PR rule (ABA Model Rule 8.4(g)), concluding that the lawyer plaintiff (Zachary Greenberg) lacked standing. Given the definitions of harassment and discrimination, the plaintiff's planned speech (teaching CLE classes in which he would oppose hate-speech bans, repeat racist epithets in discussing cases, support due process protections for people accused of sexual misconduct, and support the right to express intolerant racist views) did not violate the rule and did not face a credible threat of enforcement.

This strikes me as good illustration of standing constitutionalizing an obvious merits issue. The plaintiff did not suffer an injury because his planned speech did not violate the rule and thus he did not risk liability for it. But that is the same as saying the rule does not violate his First Amendment rights by imposing liability on him for his protected speech. In fact, that is how the First Amendment would be raised and adjudicated in an enforcement action--the state initiates disciplinary proceedings against Greenberg; Greenberg defends by arguing that his speech does not constitute harassment or discrimination or that if it does, the statute is constitutionally invalid because his speech is protected by the First Amendment; and the disciplinary proceeding fails on the merits (either before the Bar or before the Pennsylvania Supreme Court).

If that analysis goes to the merits in an enforcement action, it should go to the merits (and not jurisdiction) in a pre-enforcement action. A pre-enforcement action allows a rights-holder to determine her substantive rights without having to violate the law and risk sanction. That pre-enforcement action should mirror the enforcement action. If jurisdiction is not an issue in one, it should not be in the other. The counter might that the question of the scope of the law and whether it reaches speech (the first defense in an enforcement proceeding, independent of the constitutionally protected nature of the speech) is a question of state law and that the federal court lacks jurisdiction to address state law. But courts do not fine-grain the standing analysis in that way.

Greenberg tried to argue that he would alter his speech based "on his perception of the social climate, which he sees as infested by '[w]idespread illiberal impulses for ‘safetyism,’”" citing studies of public distaste for offensive speech. But the court refused to find injury, traceable to the rule, from Greenberg's discomfort in speaking freely or in losing professional reputation, job opportunities, and speaking opportunities. This is important. The PR rules should not sanction lawyers for protected-but-obnoxious speech. The First Amendment should have nothing to say about social consequences for being publicly obnoxious.

303 Creative as "fake case" (Updated)

I have never understood the "fake case" criticism of 303 Creative. The fact that Smith had never designed a wedding site or been asked to do so and the supposed fake email request from a same-sex couple struck me as red herrings.

In attempting to write (without success, thus far) on the case, I looked at the lower-court orders. The district court denied standing because Smith could not show that any couple, much less a same-sex couple, would seek her services (this is where the notorious email comes in). The court of appeals reversed, relying on Susan B. Anthony List, the controlling case on pre-enforcement First Amendment challenges that the district court did not cite. SBA adopts a forgiving approach, at least in First Amendment cases--plaintiff must show "an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder." Smith satisfied the first prong because "[a]lthough Appellants have not yet offered wedding website services, Ms. Smith has been employed as a graphic and web designer in the past. Appellants have also provided clear examples of the types of websites they intend to provide, as well as the intended changes to 303 Creative's webpage." The court would not assume that, if Smith offered the intended wedding-site services, no customer would request her services or that only opposite-sex couples and no same-sex couples would do so. To require the latter proof would eliminate pre-enforcement challenges, requiring rights-holders to violate the law and create active enforcement situations. That all seems right to me.

Standing's ideological drift increases daily--the left wants to ratchet it up and the right wants to swing open the federal courthouse doors. But imagine A wants to open a drag club in Tennessee--she has not begun business, but has run clubs in the past and lays out her business plan for the club. I imagine critics of 303 who support LGBT+ rights would want that business owner to be able to file a pre-enforcement action and not be forced to open the business, put on a show, and have some unknown customer complain.

Update: As if on queue , Richard Re has an essay (forthcoming in Notre Dame Law Review Reflections) showing why the criticisms are wrong, if one accepts pre-enforcement litigation, and how the case indicates an ideological realignment on standing.

9th Annual Civil Procedure Workshop

Ninth Annual Civil Procedure Workshop

Peak scope-of-injunction confusion

Judge Presnell (M.D. Fla.) may have produced the singularity of scope-of-injunction confusion in refusing to narrow-and-stay his injunction prohibiting enforcement of Florida's anti-drag law. The plaintiff is the owner of an Orlando restaurant that presents drag performances; the court preliminarily enjoined state officials (properly) from bringing "any enforcement proceedings" (improperly). The state sought to stay the injunction to the extent it went beyond the plaintiff--which Presnell describes as "neuter[ing]" the injunction.

Presnell emphasizes the law's facial invalidity in justifying the scope of the injunction. In doing so, he commits several category errors.

• The court relies on overbreadth cases allowing rights-holders to challenge a statute because of the statute's broader effects. But First Amendment overbreadth does not expand the scope of the court's order. It allows a rights-holder whose speech could be constitutionally regulated by the challenged law to raise the law's constitutional invalidity because it would be constitutionally invalid as to someone else's speech. Overbreadth allows a party to make constitutional arguments and to gain judicial relief based on those arguments about how the law affects non-parties. But nothing in that doctrine extends the judicial remedy to those non-parties; it merely gives the party additional arguments.

    Many overbreadth cases are not § 1983 offensive pre-enforcement actions; they are enforcement actions in which rights-holders raise the First Amendment as a defense (despite the defendant engaging in unprotected activities). Although the overbreadth arguments are the same, no one believes that an order dismissing a state enforcement action (e.g., a prosecution of the corporation or an attempt to strip its liquor license) protects anyone beyond that party.

    Here lies the benefit of Henry Monaghan's justification for overbreadth--valid law due process. Due process requires that any law be constitutional valid before it can be enforced against anyone, even if those constitutional defects do not affect the party to the case. This explains why an Carol Anne Bond could raise federalism defects in a chemical-weapons ban.

• I am not entirely sure why the court went the overbreadth route here. Nothing the plaintiff wants to host in its restaurant falls outside constitutional protection--it is not obscene or obscene-as-to-older-minors; this is not a case of a plaintiff arguing "my speech is unprotected but the law reaches other people's protected speech." The law is overbroad in the sense of not narrowly tailored, but that is a different thing.

• The court relies on Califano v. Yamasaki as to the availability of facial challenges. But it ignore the parts of Califano that the injunction should provide "complete relief to the plaintiffs." However constitutionally invalid the law might be or however broad the constitutional arguments he can make, the remedy benefits the plaintiff. And allowing continued enforcement of this law against others does not deny the plaintiff complete relief.

• The court conflates, in the most explicit language I have seen, geographic and party scope. The court says the following:

    • Responding to Eleventh Circuit doubts about so-called nationwide (but really universal) injunctions, the court says this "injunction is neither nationwide, nor does it pertain only to a limited class of individuals."

    • This law is not limited to a discrete universe of plaintiffs; it could apply to the vast majority of Floridians.

    • "To limit Defendant’s enforcement of the Act only to Plaintiff would subject everyone else in Florida to the chilling effect of a facially unconstitutional statute. Consequently, a statewide injunction which includes non-parties accords with the extent of the violation established."

The court expressly conflates nationwide/statewide and university. Every injunction as to a federal law is nationwide and every injunction as to a state law is statewide--the injunction prohibits enforcement of the law against the plaintiff every place in the nation/state that plaintiff goes.* Thus, of course this injunction is and should be  statewide--Florida cannot enforce this law against any restaurant that HM Florida, LLC owns and operates. But Presnell issued a universal injunction, one that protects everyone everywhere; that is the problematic piece of this.

[*] And out of state, but the protection against that comes from the limits of a law's extraterritoriality, not the injunction.

Again, this is why nomenclature matters and why the wide adoption of "nationwide" confuses the analysis. This injunction suffers the  identical defect as the Mifepristone or student-loan or sanctuary-city injunctions against federal laws and regs--it protects beyond the plaintiffs without class certification. But because we have used "nationwide" to describe those, Presnell could purport to distinguish those cases and thus the doubts about those injunctions--"those were nationwide injunctions, whereas this injunction is statewide."

• On the court's reasoning, the more people subject to a law, the more people whose rights the law infringes, and thus the more proper a universal injunction. That means that universal injunctions should be the norm, at least for laws of general applicability. But that would undermine the principle that enjoining a prosecution as to one person leaves the state free to prosecute others. And it renders FRCP 23(b)(2) useless--if a state can enjoin enforcement against everyone subject to a law when one person sues, no plaintiff would ever need or want to certify a civil-rights class.

• This also demonstrates how universal injunctions allow individual judges to arrogate a great deal of power, at the expense of other courts--to play constitutional hero. Yes, this law chills the speech of many, many people. The remedy for that is for any chilled speaker to sue and obtain an injunction protecting itself against enforcement (as the plaintiff did here) and for the opinion in one case to guide future courts handling future lawsuits from other speakers asserting their rights and seeking a remedy that protects them. If Presnell is right about the law's validity, his opinion in this case will persuade other judges to reach the same conclusion and issue injunctions protecting future plaintiffs. Moreover, if Presnell is wrong about the law's constitutional validity, his single order deprives any other judge or court from the opportunity to address that question.

Bad all around. While I hope the 11th Circuit affirms that the drag laws are constitutionally invalid, I also hope it corrects as to the scope of the injunction. Meanwhile, I wish courts would get this stuff right so I do not have to keep defending the authoritarians in Florida's government.

JOTWELL: Endo on Young & Billings on access to justice

The new Courts Law essay comes from Seth Katsuya Endo (Seattle), reviewing Kathryne M. Young & Katie R. Billings, An Intersectional Examination of U.S. Civil Justice Systems, 2023 Utah L. Rev. 487.

Fighting universality

Jeffrey Sutton of the Sixth Circuit has been a leading critic of universal injunctions. He returned to that in an order staying the injunction barring enforcement of Tennessee's prohibition on gender-affirming medical care. The majority held that the plaintiffs were unlikely to succeed on appeal on their equal protection or due process claims. The "fraught task of justifying" universal relief reenforced the need for the stay:

District courts “should not issue relief that extends further than necessary to remedy the plaintiff’s injury.” Commonwealth v. Biden, 57 F.4th 545, 556 (6th Cir. 2023). The court’s injunction prohibits Tennessee from enforcing the law against the nine challengers in this case and against the other seven million residents of the Volunteer State. But absent a properly certified class action, why would nine residents represent seven million? Does the nature of the federal judicial power or for that matter Article III permit such sweeping relief? A “rising chorus” suggests not. Doster v. Kendall, 54 F.4th 398, 439 (6th Cir. 2022); see, e.g., Trump v. Hawaii, 138 S. Ct. 2392, 2424–29 (2018) (Thomas, J., concurring); Dep’t of Homeland Sec. v. New York, 140 S. Ct. 599, 599–601 (2020) (Gorsuch, J., concurring); see also Samuel Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 457–82 (2017). Article III confines the “judicial power” to “Cases” and “Controversies.” U.S. Const. art. III, § 2. Federal courts may not issue advisory opinions or address statutes “in the abstract.” California v. Texas, 141 S. Ct. 2104, 2115 (2021) (quotation omitted). They instead must operate in a party-specific and injury-focused manner. Id.; Gill v. Whitford, 138 S. Ct. 1916, 1934 (2018). A court order that goes beyond the injuries of a particular plaintiff to enjoin government action against nonparties exceeds the norms of judicial power.

The scope issue has arisen in other district court decisions declaring invalid these care bans. District courts have issued broad injunctions despite obvious opportunity for narrower relief. The order universally prohibiting enforcement of Kentucky's ban is in obvious trouble for this and for substantive reasons.

Injunctive absurdity

Judge Doughty of the Western District of Louisiana found that federal jawboning of social media sites with respect to COVID, the 202 election, and Hunter Biden likely violates the First Amendment and enjoined hundreds of federal officials (including all of State, HHS, and DOJ) from engaging in a whole range of speech urging social-media companies to remove material. Some thoughts:

• He finds that Missouri and Louisiana have standing, in part, on behalf of their citizens' speech rights, even though states cannot exercise parens patriae standing against the federal government. The court also cannot say that the sites removed speech because of government coercion or that they would not have removed the speech without government action, which should be essential to traceability and redressability. And to the extent the evidence is unclear, the plaintiffs bear the burden of establishing standing so the uncertainty should go against standing.

• The line between lawful government speech and problematic jawboning or coercion is difficult. Judge Doughty makes no effort to engage that question or draw that line. He offers pages of examples of communications between government social-media companies in Newsmax-level conspiratorial tones, but does not explain where the line is or when some communications cross the line. Some examples lack any direct communication between government and the companies. For example, the court offers Anthony Facui's public media statements and congressional testimony criticizing hydroxychloroquine as a COVID treatment followed by social-media sites removing certain videos. Apropos the point above, the court says Facui may have spoken with sites, but does not remember. Again, however, the plaintiffs bear the burden of showing communication and causation.

• The court finds coercion, in part, because much of the targeted speech is "conservative." But viewpoint discrimination is irrelevant to the coercion line. Coercion is coercion regardless of any viewpoint preference--government engages in impermissible jawboning regardless of whose speech it targets. On the other hand, non-coercive government speech can be as viewpoint discriminatory as the government wants to be.

• The injunction is absurd in its breadth. From the binding side, it binds hundreds or thousands of officials. It prohibits officials from "urging" or "encouraging" social-media companies to adopt or change content-moderation guidelines or to do anything with "protected free speech" on their sites.

• The injunction is internally inconsistent; it swallows itself, in a way one commentator describes as the judge wanting to have his cake and eat it. After listing all the "protected" speech the government cannot encourage or urge sites to remove, the court limits the injunction to not reach "permissible government speech promoting government policies or views on matter of public concern" (such as appearances on TV to discuss the effectiveness of medical treatments, perhaps?). And it does not reach speech "informing" social-media companies of "threats that threaten the public safety or security of the United States;" "postings intending to mislead voters about voting requirements and procedures;" and  efforts to "detect, prevent, or mitigate malicious cyber activity." The line between "informing" and "urging" or "encouraging" is illusory and the court never attempts to define it. In any event, much of the speech covered by the injunction falls within the categories excluded by the injunction and vice versa.

For example, speech threatening the public safety of the United States retains constitutional protection unless it is a true threat or incitement, which most of the speech on these sites is not. So at the same time the injunction allows officials to inform social media companies of speech that threatens public safety, it cannot urge companies to do anything about that speech.

• I guess Republican officials now like universal injunctions, because this defines the concept. The plaintiffs are two states and about five individuals; the injunction prohibits government from taking steps to urge sites to remove the speech of any person on any site from any source. As always, the injunction could have been particularized to these speakers, those two states, and the citizens of those two states.

• Compounding the universality problem, the court refused to certify a 23(b)(2) class, because the plaintiffs had not presented a "working class definition." This demonstrates, from two directions, how universality undermines Rule 23(b)(2). Class certification is pointless and unnecessary if individual plaintiffs can obtain relief for an entire class of possible speakers. And if the court cannot define an appropriate class of speakers, it should not issue an injunction protecting every would-be member of that class.

Some free-speech advocates have argued that the federal government's conduct--from both the Trump and Biden Administrations--has crossed some lines. But this absurd injunction is not the answer.

303 and SB8 (Update)

I have not gotten around to reading 303 Creative or commenting on the First Amendment analysis. I want to address the standing issues not addressed in the case but which have entered the conversation.

Liberal critics have decried this as a "fake" case because no same-sex couple asked Lorie Smith to design a web site for their wedding. The record includes a declaration about one same-sex couple that did request a wedding page, but that story appears false--one of the men is married to a woman and played no role in the case. Thus, the argument goes, Smith and 303 lacked standing, but the Court (as its liberal conservative (interesting mistake) majority is wont to do) ignored that to reach out on an issue and hand a victory to a religious-conservative cause.

Apart from my usual views about standing, this should be a non-issue. Smith brought an offensive pre-enforcement challenge, so she need not show actual violations of the law or actual enforcement of the law against her--the whole point is to be able to challenge the law without violating it or risking legal sanction. She had opened a web design business and intended to do wedding sites; state law proscribed her desired conduct (decline business from same-sex couples and announce that intent); and the state was likely to enforce the law against her if she announced and followed that practice. That should be enough for a pre-enforcement action, especially in a free speech case (where courts apply standing in a more-forgiving way). Moreover, this looser approach benefits minors challenging state prohibitions on gender-affirming care--I do not want courts hanging those cases up on "this plaintiff alleges that she wants gender-affirming care, but has not yet seen a doctor or has not yet been prescribed puberty blockers."

Some link 303 and SB8 and find political motivations in the Court's differential treatment--303 dramatically expanded a species of free-speech right through an expansive approach to pre-enforcement litigation, while the Court's restrictive approach as to SB8 eliminated all pre-enforcement challenges to an abortion restriction. But the cases are not comparable. 303's supposed standing problem involves injury--because Smith had never been asked to make a wedding web site for a same-sex couple, she incurred no injury (no genuine risk the state would enforce the law against her). The standing problem in SB8 went to traceability and redressability--the lack of public enforcement meant no public official caused that injury and the court could not enjoin anyone to stop enforcement. 303 does not reflect a distinct approach to pre-enforcement litigation. Had Colorado adopted purely private enforcement for its public-accommodations laws,* there is no reason to believe the Court would not have rejected the case for the same reasons it rejected Whole Women's Health.

[*] Perhaps Blue states seeking to mimic SB8 for liberal causes and against disfavored constitutionally protected activity should consider this issue, rather than obsessing about guns. I wonder what Jonathan Mitchell, Texas officials, and conservative commentators would say.

Update: I do not intend to minimize the issue of the false evidence. If that turns out to be the case, Smith and her lawyer should be on the hook for sanctions. It does not change the appropriateness of the case, because the case was sufficiently real and live without that further evidence.

Final orders list

The Court released its clean-up order following the release of opinions, granting cert in several cases. Several things of note:

• No decision on the NetChoice cases (challenges to Texas and Florida content-moderation laws). This is somewhat surprising, since the circuit split and the First Amendment implications make a grant inevitable.

• The Court denied cert. in Cooper Tire & Rubber v. McCall, a Georgia case raising the Mallory issue of consent-by-registration personal jurisdiction. Our guest bloggers on Mallory--Rocky Rhodes and Andra Robertson--discussed the Court's perhaps-strategic choice to use Mallory rather than Cooper as the vehicle to resolve the issue. But what to make of the Court denying cert in Cooper rather than GVRing. As Rocky and Andra explained, Georgia had a stronger interest in Cooper than Pennsylvania had in Mallory--the defendants in Cooper were from Georgia, whereas no one in Mallory had any case-related connection to Pennsylvania. So if consent jurisdiction is valid in Mallory, it must be valid in Cooper. At the same time, the Court did not see fit to allow the Georgia Supreme Court to address the dormant commerce clause issue that Justice Alito emphasized in his (controlling??) concurrence-in-the-judgment.

• Justice Sotomayor called for reexamining qualified immunity in two dissentals (Justice Jackson would have granted cert in one, although she did not join the statement) from the Eighth Circuit. She raises the usual litany of criticisms of the doctrine and how lower courts have applied it.

I hope to write about 303 Creative and the standing in the student-loan cases this weekend.

Mootness and jurisdiction in Moore

I am late to the conversation about Moore v. Harper, where the Court found the case alive (over the dissent of Thomas, Alito, and Gorsuch) and (mostly) rejected the independent state legislature doctrine. Three thoughts on the jurisdictional issues. (Long post ahead).

1) I still am not sure where I land on mootness. I do not believe--contra Justice Thomas and Josh Blackman-- that the Chief fell into the writ-of-erasure fallacy. Thomas fills Part I of his dissent with (correct) descriptions of how courts enjoin actors from taking action, do not act against laws themselves, and "do not render 'judgments' that toggle statutes from 'operative' to 'inoperative' and back again, as if judicial review were some sort of in rem jurisdiction over legislative Acts."

Here is the procedural history: The state trial court held that partisan gerrymandering is a political question under the state constitution. The North Carolina Supreme Court reversed; it made three legal determinations--1) partisan gerrymandering is justiciable; 2) ISL is nonsense; and 3) the 2021 electoral maps were invalid partisan gerrymanders--and entered a judgment prohibiting use of those maps. The state legislators appealed that decision to SCOTUS. Following SCOTUS' cert grant, NCSCt affirmed the trial court's decision rejecting a remedial map. On rehearing (and following a change of court personnel), NCSCt withdrew its opinion affirming rejection of the remedial maps, "overruled" its original decision (the one sitting before SCOTUS), and dismissed the action with prejudice. But, the majority says, the state court never reinstated the original maps; its decision started everything over, allowing the NC legislature to enact whatever maps it chose. That includes enacting a new law adopting the 2021 maps.

Despite some loose language in the Chief's opinion about "presently operative statutes," I do not believe he made the mistakes Thomas accuses him of making. Rather, I think the point of departure is what happens to a preliminary injunction when the action is later dismissed. NCSCt issued an order--do not use the 2021 maps; that order was on review to SCOTUS. The court overruled the basis for that order in concluding that partisan gerrymandering is a political question and allowing the legislature to do what it wants going forward. But it did not authorize use of the 2021 maps authorized by the 2021 law.

Does that matter?

2) While I agree with Thomas' explanations for the role of courts (while remaining unsure of his conclusion), I question this:

[A]n unconstitutional provision is never really part of the body of governing law,” for “the Constitution automatically displaces [it] from the moment of [its] enactment.” Collins v. Yellen, 594 U. S. ___, ___ (2021) (slip op., at 35) (emphasis added). Thus, when a court holds a statute unconstitutional, it is emphatically not depriving it of any legal force that it previously possessed as an Act. The court is only deciding “a particular case” “conformably to the constitution, disregarding” a statute that cannot “govern the case” because it is already “void.” Marbury, 1 Cranch, at 178; accord, Bayard v. Singleton, 1 N. C. 5, 7 (1787) (holding that the unconstitutional “act on which [a party’s] motion was grounded . . . must of course, in that instance, stand as abrogated and without any effect”). “That is the classic explanation for the basis of judicial review” set forth in Marbury and Bayard, and it remains “from that day to this the sole continuing rationale for the exercise of this judicial power.” Mackey v. United States, 401 U. S. 667, 678 (1971) (Harlan, J., concurring in judgment in part and dissenting in part).

That works for defensive litigation. When the state prosecutes Johnson for burning a flag, the court disregards the law of prosecution and refuses to allow it to govern the case, thereby requiring dismissal of the prosecution. It does not work for offensive pre-enforcement litigation, in which the federal plaintiff seeks to avoid the case in which the challenged law would govern, by enjoining an official from enforcing that law in the future. A federal court in an offensive action does not disregard the challenged law; it prevents future conduct by a government official with that law. And that conduct may occur outside of court--such as administering elections under particular maps.

3) Mootness aside, Moore also presented issues of SCOTUS jurisdiction under § 1257(a), which is limited to "final" judgments or decrees. Although the state court had decided that ISL does not apply (a federal issue), the case remained ongoing in state court as the parties worked to create new maps consistent with the state constitution.  Cox Broadcasting v. Cohn treats as final cases in which the "highest court of a State has finally determined the federal issue present in a particular case, but in which there are further proceedings in the lower state courts to come." Cox identified four circumstances in which a state supreme court order is final despite ongoing state-court proceedings. The majority relied on the second category--"the federal issue, finally decided by the highest court in the State, will survive and require decision regardless of the outcome of future state court proceedings."

This is the wrong category. Cox defined this category by citing to Radio Station WOW and Brady v. Maryland. In WOW, the state supreme court ordered the transfer of property from a federal license holder and ordered an accounting; the ongoing accounting did not affect the federal issue (interference with the license), which was tied to the transfer. In Brady, Maryland's highest court* upheld Brady's conviction but ordered a new sentencing hearing; that proceeding did not affect the federal due process rights that Brady argued were violated by a conviction without disclosure of evidence. The key to this category is that the remaining state-law proceedings do not affect the federal issue; nothing that happens eliminates the federal issue, regardless of who wins or how the state courts resolve those future issue. Brady believes his conviction violates due process; that remains alive regardless of the ultimate sentence. The radio station believes the loss of property affects its federal license; that remains alive regardless of the outcome of the accounting.

[*] Then called the Maryland Court of Appeals, changed to Maryland Supreme Court in 2023.

That is not this case. Whether the federal issue remains alive depends on what happens in state court. Imagine (as was the case when SCOTUS granted cert) ongoing state litigation to draw new maps that comply with the state constitution. If the state court approves the legislature's preferred maps, the federal issue (ISL) goes away. The state will not appeal the maps or argue they have unfettered power, because they won and so the scope of their power does not matter; the plaintiffs will appeal the maps on independent-and-adequate state constitutional grounds, but would not argue ISL because it does not help them. if the state court rejects the legislature's preferred maps, the federal issue remains alive--the state will return to NCSCt, NCSCt approves the maps, and the state challenges those maps on ISL grounds. Of course, that takes time and energy, leaving the federal issue unresolved. And that is, in fact, where the case landed: The state won on state-law grounds (partisan gerrymandering is non-justiciable) and any appeal the plaintiffs might have rests on state law, not federal law.

Thus, this case better fits the fourth category, created in Cox:

Lastly, there are those situations where the federal issue has been finally decided in the state courts with further proceedings pending in which the party seeking review here might prevail on the merits on nonfederal grounds, thus rendering unnecessary review of the federal issue by this Court, and where reversal of the state court on the federal issue would be preclusive of any further litigation on the relevant cause of action, rather than merely controlling the nature and character of, or determining the admissibility of evidence in, the state proceedings still to come. In these circumstances, if a refusal immediately to review the state court decision might seriously erode federal policy, the Court has entertained and decided the federal issue, which itself has been finally determined by the state courts for purposes of the state litigation.

That is this case. The appealing party (legislators) might prevail on nonfederal grounds (as, in fact, they did), depriving SCOTUS of the opportunity to review the federal issue; immediate reversal on the federal issue precludes further state litigation--had SCOTUS adopted ISL, the state wins without having to do anything more. And the delay or elimination of the ISL issue "seriously erode[s] federal policy" by leaving unresolved whether state legislatures can do whatever the hell they want--sure to be an issue in the coming presidential election.

I am not sure why the Chief went with # 2 rather than # 4.

Why "universality" better captures the scope-of-injunction problem

Everyone will be talking about the death(?) of affirmative action, but I do not have much legal to add to that conversation. So I am going to use and a few other posts to catch up on some things.

First up, Judge Hale of the W.D.Ky. declared invalid that state's ban on puberty blockers and cross-sex hormones for minors, joining district courts in Arkansas, Tennessee, and Florida. These cases trigger anew the scope-of-injunction problem-- and not well. Judge Hale issued what he called a "facial injunction" and said the following:

The Commonwealth suggests that any injunction should be limited in scope to cover only those plaintiffs who are already taking the drugs in question. (D.N. 47, PageID.514-15) But the fact “that some minors experiencing gender dysphoria may choose not to pursue the gender transition procedures covered by the Act and therefore would not be harmed by its enforcement” does not mean that a facial injunction would be overbroad. Brandt, 47 F.4th at 672; see id. (“The proper focus of the [facial] constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.” (alteration in original) (quoting City of Los Angeles v. Patel, 576 U.S. 409, 418-19 (2015))). The Commonwealth notably “fail[s] to offer a more narrowly tailored injunction that would remedy Plaintiffs’ injuries,” id., and as Plaintiffs point out, it would be virtually impossible to fashion one. (See D.N. 52, PageID.1678-79) A facial injunction is therefore appropriate.

This is nonsense. An obvious narrower injunction remedies plaintiffs' injuries--the state cannot enforce the law to prevent these seven minors from continuing and/0r begin receiving treatments, as they choose. That remedies their injuries, regardless of what the state can or does do as to any other trans person who seeks or intends to seek treatment.  Protecting these plaintiffs need not help non-plaintiffs (compare an order compelling a school to return a book to the library). Nor is this a case in which the court cannot identify plaintiffs from those similarly situated. Because the trans kids sued on their own behalf (rather than through some organization or a doctor or a state asserting third-party or associational standing), we can easily identify who the injunction protects and who falls outside the injunction.

This and other cases illustrate why it has been a mistake to use "nationwide" to describe beyond-the-plaintiff injunctions. The problem never was confined to challenges to federal laws and regulations. States always could enact broad discriminatory laws and regulations simultaneously affecting large numbers of people, triggering the same issue of who an injunction protects after a court declares those laws constitutionally invalid. But no one would label this injunction "nationwide," while "statewide" adds another term and thus more confusion. That is why universality works best--it captures the idea of an injunction (improperly) extending to everyone who might be subject to enforcement of the challenged law, regardless of the breadth of that universe.

(Guest Post) The Supreme Court Continues Its Fractured Approach to Personal Jurisdiction

The following post is by Charles "Rocky" Rhodes (South Texas) and Cassandra Robertson (Case Western), who have been blogging about Mallory v. Northfolk Southern Railway.

Studying personal jurisdiction has long been how 1L’s learn the difference between plurality and majority opinions, and, as Justice Brennan used to say, the importance of counting to five votes. With Tuesday’s decision in Mallory v. Norfolk Southern Railway, that tradition will continue!

The Supreme Court ruled in favor of the plaintiff, who relied on Pennsylvania’s corporate registration jurisdiction-by-consent statute to sue the railway company in Pennsylvania. It was the second time in a row for a personal jurisdiction plaintiff to prevail in the Supreme Court after a string of six defense rulings, suggesting that the Court is looking for a more stable equilibrium in its personal jurisdiction jurisprudence. Here a century-old case proved the key. The Court relied on its venerable 1917 holding in Pennsylvania Fire Insurance Co. v. Gold Issue Mining & Milling Co., which held that a state’s jurisdictional assertion under a similar corporate registration statute for any claim did not violate due process.

But this victory for Mallory may be short lived. Justice Alito—the necessary fifth vote for holding the Due Process Clause was not violated—indicated in his concurrence in the judgment that the Pennsylvania statute likely violated the dormant Commerce Clause. He noted Pennsylvania had no state interest in this particular case because the plaintiff did not reside in Pennsylvania when the suit was filed, the harm did not occur in Pennsylvania, and Norfolk Southern was neither at home nor incorporated in Pennsylvania. Yet these concerns leave open the potential for state legislatures to adopt a sounder jurisdictional approach for corporations, avoiding the uncertainties of the outer limits of the minimum-contacts test.

The Plurality Opinion

Justice Gorsuch authored the part-majority, part-plurality opinion. In a footnote likely to be a life preserver for 1L students (unless edited out by casebook authors!), he quickly summarized the points on which five justices agreed:

“While various separate writings accompany this opinion, it should be apparent a majority of the Court today agrees that: Norfolk Southern consented to suit in Pennsylvania. Supra, at 10–11; post, at 2 (opinion of ALITO, J.). Pennsylvania Fire therefore controls this case. Supra, at 11–12; post, at 2–4 (opinion of ALITO, J.). Pennsylvania Fire’s rule for consent-based jurisdiction has not been overruled. Supra, at 13–14; post, at 4 (opinion of ALITO, J.). International Shoe governs where a defendant has not consented to exercise of jurisdiction. Supra, at 14–15; post, at 4 (opinion of ALITO, J.). Exercising jurisdiction here is hardly unfair. Supra, at 17–20; post, at 4–5 (opinion of ALITO, J.). The federalism concerns in our due process cases have applied only when a defendant has not consented. Supra, at 21; post, at 7–8 (opinion of ALITO, J.). Nor will this Court now overrule Pennsylvania Fire. Supra, at 21–23; post, at 4 (opinion of ALITO, J.).”

But, as this summary indicates, the portion of Justice Gorsuch’s opinion that is a majority is narrow; essentially, Pennsylvania Fire controls the Due Process Clause analysis for a state imposing consent to jurisdiction as a consequence for registration and International Shoe’s minimum-contacts test controls outside that context. The Court vacated the Pennsylvania Supreme Court’s judgment that the statute was unconstitutional under the Due Process Clause and remanded to allow consideration of the railroad’s alternative argument that Pennsylvania’s statutory scheme violated the dormant Commerce Clause.

In the sections for a plurality, Justice Gorsuch hinted at a broader reconfiguration of personal jurisdiction that continued the dialogue he started in his concurrence in Ford Motor Co. v. Montana Eighth Judicial District Court. He opened with a hypothetical based on the East Palestine, Ohio train derailment, with imagined suits filed in Pennsylvania against a Virginia train conductor served while in the state and against Norfolk Southern based on its consent to jurisdiction through registration in the state. Because the Due Process Clause would not bar a suit against the conductor, the railroad, according to Justice Gorsuch, should be treated the same.

At the founding and through the time of the Fourteenth Amendment’s adoption, “a tribunal’s competence was generally constrained only by the ‘territorial limits’ of the sovereign that created it.” This meant that, in transitory actions against an individual defendant, suit could be maintained on any claim at any place the defendant could be found. Today, this jurisdictional basis is often known as “tag” jurisdiction; the Court unanimously affirmed (although in fractured opinions) its continued propriety in 1990 in Burnham v. Superior Court of California.

But, the plurality’s jurisdictional historical tale continued, the difficulty was adapting the traditional rule about transitory actions against individuals to corporate artificial persons created by law. States did so, both before and after the Fourteenth Amendment’s ratification, by adopting “statutes requiring out-of-state corporations to consent to in-state suits in exchange for the rights to exploit the local market and to receive the full range of benefits enjoyed by in-state corporations.” Although these statutes took various forms, some authorized the state to assert jurisdiction over any claim—irrespective of any relationship to the forum—against a corporation appointing an agent for service of process under a state corporate registration scheme. When a constitutional challenge to one of these statutes came before the Court in 1917, Justice Holmes’ unanimous Pennsylvania Fire opinion succinctly dismissed any due process concerns.

The plurality then explained its refusal to overrule Pennsylvania Fire. International Shoe and its progeny did not undermine Pennsylvania Fire; those cases “stake[d] out an additional road to jurisdiction” over nonconsenting out-of-state corporations but did not impact the permissibility of jurisdiction through consent. The Pennsylvania statutory scheme fell within the “variety of actions” by a defendant that may amount to a legal submission to a court’s jurisdiction. And there was no unfairness here, especially as Norfolk Southern undertook extensive and substantial in-state activities and managed more miles of track in Pennsylvania than in any other state.

Counting Votes

The four separate writings showed many of the same divisions that arose during the oral argument. 

Justice Jackson fully joined the plurality opinion and added an additional concurrence, focusing on the ways in which personal jurisdiction can be waived: “by explicitly or implicitly consenting to litigate future disputes in a particular State’s courts,” by “fail[ing] to follow specific procedural rules” and thus “waiving the right to object to personal jurisdiction as a consequence,” and by “voluntarily invok[ing] certain benefits from a State that are conditioned on submitting to the State’s jurisdiction.”

Justice Alito, by contrast, joined only part of Justice Gorsuch’s opinion. He did not join Part II, which largely set out the history of personal jurisdiction and registration statutes at the time of Pennsylvania Fire. He also did not join Part III-A, which set out the procedural history of Pennsylvania Fire and the Court’s decision in that case. And he did not join Part IV, which concluded that Norfolk Southern’s extensive Pennsylvania contacts supported the “fair play and substantial justice” analysis in personal jurisdiction.

Justice Alito differed most from the plurality regarding whether the state could exercise jurisdiction over a case in which the state has no “legitimate local interest.” Our amicus brief made largely the same point, as we discussed in an earlier post. However, Justice Alito’s view is that the potential lack of a state interest isn’t a personal jurisdiction/due process problem; instead, it’s a dormant Commerce Clause problem. Because the state-interest point wasn’t well developed in the record, and the Pennsylvania Supreme Court had not reached the dormant Commerce Clause issue, Justice Alito supported remanding the case for determination of that question. He expressed serious doubt that the state could hear the case, writing that he was “hard-pressed to identify any legitimate local interest that is advanced by requiring an out-of-state company to defend a suit brought by an out-of-state plaintiff on claims wholly unconnected to the forum State,” and that “even if some legitimate local interest could be identified, I am skeptical that any local benefits of the State’s assertion of jurisdiction in these circumstances could overcome the serious burdens on interstate commerce that it imposes.” The question of state interest will likely be a focal point of the proceedings on remand under the dormant Commerce Clause.

Finally, Justice Barrett dissented, joined by the unusual line-up of Roberts, Kagan, and Kavanaugh. These justices would have completely jettisoned jurisdictional consent by registration, relying predominantly on the Roberts Court’s recent decisions. Interestingly, two of the dissenting justices—Barrett and Kagan—both taught Civil Procedure before taking the bench.

The Future of Personal Jurisdiction

What does the future hold for personal jurisdiction?

First and foremost, the opinion leaves room for the states—and especially state legislatures—to adopt jurisdictional rules that reflect state policy. After Mallory, both the business-interest and plaintiffs’ constituencies have an incentive to negotiate those policies. The broad sweep of the plurality opinion creates an opening for states to return to open-ended jurisdiction based on state registration. At the same time, Justice Alito’s warning about potential Commerce Clause violations suggest that a state’s attempt to exercise jurisdiction in a case wholly unconnected with the state might be vulnerable on other grounds. Several years ago, we drafted a model consent-by-registration statute that offered a middle ground, giving rise to jurisdiction only in cases where there was a significant state interest. After the decision in Mallory, we think that the case is even stronger for the states to adopt a narrowly focused statute that explicitly sets out the consequences of registration. Such a statute would offer predictability, would avoid a significant amount of jurisdictional litigation, and would avoid the worst excesses of either too-broad or too-narrow state jurisdiction.

The case also highlights the impact of methodological divides on jurisdictional doctrine. Justice Gorsuch’s plurality opinion is predominantly originalist. Because the states had similar statutory schemes before and at the time of the ratification of the Fourteenth Amendment, and those schemes were upheld some fifty years later in Pennsylvania Fire, the Due Process Clause was not violated. The plurality largely ignores the new jurisdictional constraints announced by the Roberts Court over the last dozen years, viewing those as irrelevant when the asserted jurisdictional basis is a type of consent, a traditional form outside the minimum-contacts test. But while clothing its opinion in originalist garb, the plurality indicates a functional disagreement with the premises underlying the Roberts Court’s restrictive turn in personal jurisdiction.

In contrast, the dissent relies primarily on doctrinal arguments, reasoning from the contours of its past decisions. The dissent fears that the recent constraints on a corporation’s amenability to suit would be for naught if states could circumvent those limits by requiring corporations to consent to all-purpose jurisdiction to do business in the state. As a result, the dissent seeks to eliminate corporate registration schemes as a jurisdictional alternative.

Such interpretive divides typically lead to highly fractured decisions, which has been a problem in the past in personal jurisdiction and appears likely to be a continuing difficulty. While the Roberts Court issued a majority opinion in six of its seven prior jurisdictional rulings, those days may be coming to an end. Justice Breyer’s replacement by Justice Jackson, and Justice Gorsuch and Thomas championing an originalist approach, provide three additional voices to Justice Sotomayor’s fight against the restrictive turn in personal jurisdiction. It appears that, at least for the foreseeable future, the study of personal jurisdiction will remain the 1L subject demonstrating the importance of plurality opinions and counting votes.

Florida Supreme Court displeased with federal judicial overreach

Andrew Warren wants his job as state's attorney back, following his specious and politically motivated suspension by Presidential Candidate (and not-for-several-weeks Governor) Ron DeSantis. But he also wants to avoid the constitutionally mandated process for doing so--a Senate trial--fearing (not without reasonable cause) that the Senate will rubber-stamp DeSantis's decision. He failed in federal district court, in a case I believed never should have gotten as far as it did. And he failed in the Florida Supreme Court, which denied his writ of quo warranto.

The latter was a longshot, as the court explains. Under the Florida Constitution, the Senate is the appropriate "court" for challenging suspension. The Florida Supreme Court exercises limited review to determine that the suspension is facially valid. But court never reached that much, instead denying the writ as untimely, because Warren went through five months of federal proceedings before filing in state court.

In rejecting the writ, SCoFL expressed its displeasure with the federal court and Warren for, in essence, derogating SCoFL and state institutions generally.

As to the district court, the state court said:

Inexplicably, despite having previously dismissed Petitioner’s state-law claim—a claim that challenged the facial sufficiency of the suspension order—the federal district court proceeded to reach various “conclusions” regarding the propriety of the suspension under Florida law. Indeed, the federal district court twice stated that the suspension “violated the Florida Constitution,” id. at D115, D125, and the federal district court purported to decide certain “factual issue[s],” including whether “Mr. Warren neglected his duty or was incompetent,” id. at D117. The federal district court did so even though its “jurisdiction over [Petitioner’s state-law] claim [was] barred by the Eleventh Amendment,” Pennhurst, 465 U.S. at 121, and even though “[i]t is the function of the [Florida] Senate, and never that of the Courts, to review the evidence upon which the Governor suspends an officer,” Sullivan, 52 So. 2d at 425. At one point, the federal district court challenged the Governor to “simply rescind the suspension.” Warren, 29 Fla. L. Weekly Fed. at D124. And at another point, the federal district court seemingly questioned the ability of the Florida Senate to dutifully carry out its constitutional role in suspension matters, referring to that legislative body as “heavily partisan.” Id.

I made similar points following the district court's decision--there was no reason to decide the suspension's state-law validity to decide that DeSantis had a non-pretextual state-law reason for the suspension that defeated the First Amendment claim.

Warren worsened the situation by arguing that the district court's state-law musings should have issue-preclusive effect. Rejecting the argument, the court stated that issue preclusion cannot turn a loser into a prior winner on discrete issues, while noting that the federal case is on appeal to the Eleventh Circuit and thus not final. I would add that the federal court's conclusions about the suspension were not necessary to the federal judgment, another element of claim preclusion.

Finally, the court points to, and does not dismiss, DeSantis's suggestion that Warren invoked SCoFL as a "backup plan," an unfavorable forum to which he ran late and as a last resort. It does not buy Warren's explanation--state law sets no time limit on a quo warranto application and he filed about one month after the district court dismissed that action--because it does not like the idea that he ran to federal court in the first place.

Getting particularity right, legally and practically

Chris Geidner reports on a Northern District of Florida decision declaring invalid Florida's prohibition on Medicaid coverage for puberty blockers and cross-sex hormones. Reading the order page (declaring the regs invalid; enjoining the named defendant, Jason Weida; and extending the injunction to other officers per FRCP 65(d)(2)), Chris argues that the decision is not only about the plaintiffs, because the first point applies to the law and regulations. This is wrong as a legal matter, although not as a practical matter. It also illustrates where everyone gets the universality/particularity analysis wrong.

As a legal matter, the court's order affects four named plaintiffs--two adults, two minors. That's it. Yes, the court declared Florida's Medicaid laws and regs invalid. But courts do not make legal declarations in the abstract; they declare the rights and other legal relations of any interested party. SCOTUS reaffirmed last week (as to defendants) in Haaland v. Brackeen that a DJ "conclusively resolves '‘the legal rights of the parties.’'" That is, they declare the law and regs invalid as to the plaintiffs. Declaratory judgments are no more universal than injunctions, absent certification of a 23(b)(2) civil rights class , which plaintiffs did not seek or obtain. The court's order binds the named defendant (the secretary of the state health-care agency) and everyone else who might enforce those Florida laws against them--any attempt to enforce against these four people violates the order.

This order does not prohibit anyone bound by the injunction--Weida or other officers--from enforcing these regulations against anyone other than those four plaintiffs. They could deny to John Smith Medicaid coverage of his prescription for puberty blockers or cross-sex hormones, without violating the current court order or risking contempt. But suppose they did that. Smith would join as a plaintiff in the current action and ask the court to extend the DJ and injunction to him; because he is identically situated to the original plaintiffs, the court would quickly grant the request. Or Smith would file his own lawsuit and quickly obtain a preliminary injunction on the strength of the prior decision. Either approach produces a court order that protects Smth as a named plaintiff, such that enforcement of the regs against him violates the order and risks contempt. But it requires that additional step of making Smith a party to the litigation and bringing him under the court's protection.

As a practical matter, on the other hand, Chris is correct--Florida officials will not enforce these regs against anyone; Florida Medicaid will cover these procedures for all recipients, barring a stay or appellate reversal. But the court order, as framed, does not compel that result as a matter of law. Rather, Florida officials will cover the procedures for non-parties because declining to do so wastes everyone's time and money* by triggering the further litigation--certain to succeed--described in the prior paragraph.

[*] Plaintiffs brought this action under § 1983, so § 1988(b) authorizes attorney's fees for prevailing plaintiffs. And each time a plaintiff obtains a new or extended injunction, the state will pay the fees for that process.

Does this matter, if we end up in the same place? In my view yes, because process matters.

Haaland: Standing, or why didn't the entire case have to come through state court

Haaland v. Brackeen rejected (7-2) a constitutional challenge to the Indian Child Welfare Act. The relevant plaintiffs were the State of Texas and three sets of adoptive, foster, or birth parents; the defendants were the Secretary of the Interior and various federal officials; the lawsuit was filed in federal district court. The Court rejected the challenge to the placement-preference provision for lack of standing, finding that an injunction or DJ as to the validity of that provision would not redress the plaintiffs' injuries; any injuries arose from the action of state judges applying ICWA and state officials enforce state-court orders, none of whom were parties to the case and none of whom were bound by any judgment. That the state officials likely would follow the federal court's opinion does not establish standing; in  music to my ears, Justice Barrett wrote "[i]t is a federal court’s judgment, not its opinion, that remedies an injury."

But the Court reached, and rejected, the merits of challenges to the entire statute under the Indian Commerce Clause and under Tenth Amendment anticommandeering to the requirements in involuntary proceedings; to placement preferences; and to certain record-keeping requirements. At least as to the latter two, the Court relied on anticommandeering's unique non-application to state courts, which must apply federal law in all cases before it as the supreme law of the land.

What I do not understand is how these plaintiffs had standing to bring a federal suit in federal district court to challenge any of these provisions on any grounds. All claims suffer the same redressability problems--the plaintiffs suffer an injury when non-party state judges apply ICWA to decide cases and non-party state officials enforce those judgments. So it seems to me this entire case should have had to come through state court--a state family court decides an adoption/placement case applying ICWA; the parents (and the State, if so inclined) argue that ICWA is constitutionally invalid and cannot be applied; the loser(s) appeal through the state system and ultimately to SCOTUS, which decides these constitutional issues in the course of reviewing a state judgment applying that law.

JOTWELL: Bookman on Weinstein-Tull on traffic courts

The new Courts Law essay comes from Pamela Bookman (Fordham) reviewing Justin Weinstein-Tull, Traffic Courts, 112 Cal. L. Rev. ___ (forthcoming 2023), the latest article (and Courts Law review essay) to consider life in lower-level state and local courts (and outside the federal courts on which many scholars and scholarship focus).

§ 1983 enforcement survives, for the moment

The Court decided HHC v. Talevski Thursday, seven months to the day after argument. Here is my SCOTUSBlog analysis. The Court held 7-2 (by Jackson) that Spending Clause enactments are enforceable through § 1983 and that Federal Nursing Home Reform Act ("FNHRA") can be enforced through § 1983. I suppose I understand the delay. Thomas wrote a 36-page dissent tracing the history and evolution of the Spending Clause to argue that spending enactments do not "secure" legal statutory rights, only contractual rights, otherwise such rights violate anti-commandeering. Alito (joined by Thomas) dissented to argue that FNHRA is not enforceable because Congress intended to preclude § 1983 enforcement. Gorsuch and Barrett (with the Chief) joined the majority but added short concurrences.

The title of the posts suggests the reprieve to private enforcement may be temporary. Five justices wrote various things suggesting a narrow approach to private enforcement of Spending Clause laws, if not an intent to eliminate it. Thomas made his position clear. Gorsuch's one-paragraph concurrence spoke of "issues lurking" that petitioners failed to develop--namely, the anti-commandeering concerns Thomas discussed. In other words, Gorsuch might agree with Thomas in a different-and-better-litigated case. Barrett and Roberts went out of their way to remind courts to "tread carefully before concluding that Spending Clause statutes may be enforced through §1983." And Alito believes that a combination of state law proceedings and internal grievances sufficient to preclude federal litigation.

JOTWELL: Levy on George, et al. on SCOTUS Clerks

The new Courts Law essay comes from Marin Levy (Duke), reviewing Tracey E. George, Albert Yoon, & Mitu Gulati, Some Are More Equal Than Others: U.S. Supreme Court Clerkships, an empirical study of who clerks for SCOTUS, where they come from, and where they go.

What is the Court planning for § 1983 "and laws"

My SCOTUSBlog case for this term is Health & Hosp. Corp. v. Talevski, asking the Court to reconsider precedent allowing enforcement of Spending Clause enactments through § 1983 "and laws" actions. The Court held arguments on November 8 and still has not issued an opinion. My reading on the argument was that there was no appetite for doing that. But the long delay suggests either 1) they are going to do it or 2) someone is writing separately to argue why they should do it. The case is not, all things considered, that controversial; I would not expect the Court to take seven months (and counting) or to hide it in the end-of-Term document dump.

The delay has created bigger problems for the in-progress third edition of Understanding Civil Rights Litigati0n. The discussion of "and laws" actions covers the state of the law from 1980 (Maine v. Thiboutot) through summer 2023. It includes a paragraph that there is "doubt" about § 1983 and Spending Clause enactments, mentioning that the Court granted cert to decide the issue in Talevski this Term. I wrote that as a placeholder in January, expecting to change it during the editing process. But the final round of of galley edits passed; the only remaining piece of the process is indexing, if we hope to have the book available in August. If the Court does something crazy, it renders several pages obsolete (how obsolete depends on how crazy), with no opportunity to correct it.

We could say the same about Mallory and establishing general personal jurisdiction through business registration, argued the same day as Talevski--this is a long time to spend on this case, suggesting division and someone doing something wild.

Preclusion in the news (Update)

In his CNN-sponsored political rally, held the day after a jury found him liable to E. Jean Carroll for sexual abuse and defamation, Donald Trump  called Carroll a "whack job" and her allegations a "fake story." Carroll is contemplating bringing new claims for defamation.

Any lawsuit will continue Trump's trend of introducing the public to otherwise-obscure legal concepts--this time, issue preclusion. Trump in the new litigation will be bound by the jury's necessary conclusion that he did sexually abuse Carroll in that dressing room; the parties must litigate the remainder of the case (were his denials opinion, is "whack job" opinion, what are her new damages) in light of that established fact. But all the elements are satisfied--the jury found that he abused her, the finding was necessary to the verdict, Trump had a full-and-fair opportunity to litigate, and we actually have mutuality.

It plays an unusual role here. Kyle Rittenhouse has made noise about bringing defamation actions against those who continue to call him a murderer. Those claims fail for several reasons, including that these speakers are not bound by the jury's conclusion that Rittenhouse acted in self-defense and can speak contrary to that. Trump--as a party to the case--loses that luxury.

Update: Ken White on Serious Trouble discusses a different wrinkle (while calling the entire thing a law school exam)--whether Carroll can sue CNN for airing Trump's comments and whether she can establish actual malice based on the jury verdict. Again, issue preclusion does not apply to CNN--as a non-party to the original suit, it never had a full-and-fair opportunity to litigate and cannot be bound by the prior decision. But it presents an interesting fact question (White believes sufficient to survive 12(b)(6) and probably summary judgment) of how much pause a verdict holding a fact to be true must give a future speaker. And that question perhaps interacts with the standard of persuasion underlying that verdict--whether CNN is less reckless in disagreeing with a verdict finding it more likely than not Trump assaulted her as opposed to a verdict finding beyond a reasonable doubt that Trump assaulted her.

Snap removal swallows everything

An odd, but probably not unusual, phenomenon--one weird rule affects and infects application of other, related rules and processes. Snap removal seems to act as one such rule, with parties arguing that all sorts of removal is proper so long as it happens before service on a local defendant. I wrote last summer about a district court reading snap removal to override the time-of-filing rule for jurisdiction, allowing Tesla to remove a California case when it moved its headquarters post-filing but pre-service. (I tested on the case this semester). The defendant tried a similar move in this case, arguing that snap removal was proper when the diverse defendant removed before the non-diverse local defendant was served. Fortunately, Judge Stras was having none of it; even recognizing snap removal (the 8th Circuit has never weighed in), that cannot overcome the complete diversity requirement.

JOTWELL: Steinman on constitutional remedies

The new Courts Law essay comes from Adam Steinman (Alabama) reviewing Brandon L. Garrett & Kaitlin Phillips, AEDPA Repeal, 107 Cornell L. Rev. 1739 (2022) and Alexander Reinert, Joanna C. Schwartz & James E. Pfander, New Federalism and Civil Rights Enforcement, 116 Nw. U. L. Rev. 737 (2021); the articles explore and criticize different limitations on constitutional remedies.

Challenging private enforcement

Rocky and I discussed this in our SMU piece, but I have been thinking about it more of late.

B8 and other exclusive-private-enforcement (or "vigilante federalism") draw two related-but-distinct objections. They force rights-holders to litigate their rights defensively, cutting off most offensive litigation; while offensive litigation is not constitutionally required, it offers certain advantages, notably not forcing rights-holders to "act at their peril" as a condition of litigating their rights. And they force rights-holders to litigate in state court.

The second objection arises from two limits on federal jurisdiction--the Well-Pleaded Complaint Rule and Article III standing. Both prevent the defendant/rights-holder from removing a state-court action to federal court. Under the WPC, federal jurisdiction requires the federal issue to appear in the complaint; the rights-holder's federal defense does not provide a basis for federal jurisdiction and thus for removal. And laws allowing "any person" to sue cannot be in federal court even absent the WPC, because a random "any person" plaintiff likely does not have Article III standing (even if he might have standing under more forgiving state law).

Of course, both judge-made limits on federal jurisdiction suffer from significant problems. The WPC arguably undermines the purposes of federal question jurisdiction (uniformity, expertise, respect); those needs are present regardless of the procedural posture in which the federal issue arises. A defendant needs expertise for a federal defense as much as a plaintiff needs expertise for a federal claim. Standing is stupid and not really jurisdictional, as I have argued. And even if jurisdictional, Andy Hessick argues that federal courts should apply state standing rules in diversity cases. Without both stupid doctrines, the defendant could remove the vigilante-federalism action and litigate in federal court, where she has a (perhaps) fairer and less-captured forum and a shorter path to SCOTUS.

This does not address the first objection--rights-holders should not be forced into defensive litigation. But the question is what is the real objection?

Social media and state action

The court granted cert in a case from the Ninth Circuit (finding state action) and a case from the Sixth Circuit (finding no state action and taking a very different analytical approach).

Beyond the conclusion, I am concerned for how the Court approaches this. Some lower courts apply a "close nexus" test, which usually applies to purely private actors engaging in private conduct having some government connection or requirement. The analysis here should be different, where the defendant is a government employee/official and the question is whether that official status enabled his conduct. These cases should look more like rogue or off-duty cops, as opposed to labor unions collecting fees through a government-controlled process. It is a subtle difference, but it is more than semantic.

On the other hand, dammit--the publisher said no substantive changes on these edits.

JOTWELL: Coleman on Brito, Sabbeth, Steinberg & Sudeall on racial capitalism

The new Courts Law essay comes from Brooke Coleman (Seattle) reviewing Tonya L. Brito, Kathryn A. Sabbeth, Jessica K. Steinberg & Lauren Sudeall, Racial Capitalism in the Civil Courts, 122 Colum. L. Rev. 1243 (2022), which explores the racial inequality embedded in state court procedure.

District Court gets defensive/offensive right--standing still sucks

In 2021, I wrote about an Eighth Circuit case in a challenge to Arkansas' exclusive-private-enforcement ag-gag law. An animal-rights organization brought an offensive challenge to the law against several farm owners/potential plaintiffs. A divided court found the chilling effect of the law and the threat of suit established injury-in-fact for standing. I criticized this focus on standing, because the plaintiffs had no § 1983 cause of action against non-state actors; the court did not address that issue because it went to the merits and standing serves as a threshold.

The district court corrected that on remand. It granted defendant's motion to dismiss, concluding that the plaintiffs cannot satisfy § 1983 because the would-be state-law plaintiff does not act under color. The court further rejected plaintiff's argument that in finding an injury the court found state action. While the issues can be "one-and-the-same," the finding of a threshold does not necessarily satisfy the element. Nevertheless, that the plaintiff raised and thought the argument could work shows how far the law of standing has constitutionalized an essentially merits inquiry and needlessly complicated constitutional litigation.The court also explains offensive and defensive litigation and when only one is available--why state action allowing a defense does not equate with state action/under color allowing an offensive action, why every case plaintiff cites arose defensively and thus does not support the § 1983 argument it attempts to make, and why a Fourth Circuit offensive action against a state agency with state-law enforcement power does not support an offensive action against a private would-be plaintiff.

JOTWELL: Pfander on Elliott on SCOTUS original jurisdiction

The new Courts Law essay comes from James Pfander (Northwestern-Pritzker) reviewing Heather Elliott, Original Discrimination: How the Supreme Court Disadvantages Plaintiff States, 108 Iowa L. Rev. 175 (2022), a takedown of SCOTUS's exercise of discretion in original jurisdiction and some solutions.

Judicial immunity and other civil rights hurdles (Update)

Steve Lubet (Northwestern) writes in Slate about Judge Robert Benitez (S.D. Cal.), who ordered the marshall to handcuff the 13-year-old daughter of a defendant in a parole-revocation hearing and have her sit in the jury box; his intent, he explained, was to send a message: “So your dad’s made some serious mistakes in his life, and look at where it’s landed him. … And if you’re not careful, young lady, you’ll wind up in cuffs, and you’ll find yourself right there where I put you a minute ago.”

Lubet expresses concern that Benitez will incur no sanction for his actions. Life tenure means he cannot be removed from the bench other than by impeachment. The case was transferred to another, who reduced the 10-month sentence Benitez imposed. A judicial-misconduct complaint has been filed, but the sanctions are minimal--censure and perhaps an interruption of newly assigned cases.

As for civil remedies, Lubet says "He cannot be sued for damages, because he has judicial immunity for conduct on the bench."

But is the immunity issue that obvious? Immunity attaches to "judicial functions," performed not in the "complete absence of jurisdiction." That captures most conduct on the bench. But the conduct must relate to the conduct of judicial proceedings and control of the courtroom. But this may exceed even the broadest understanding of those concepts. Benitez was not maintaining order in the courtroom or ensure the proper conduct of judicial proceedings. He admits to "hoping" to get to the girl--not a party, witness, or other participant and only tangentially related to the proceeding--a "message" about how she should live her life. Above the Law called it a "bush league Scared Straight, which, despite the source, is a pretty good descriptor. Warning random teens about the danger of crime is not a judicial function; that it happens in court should not matter. The motive behind a function does not affect immunity--a judicial function performed for a racist purpose remains a judicial function. But the purpose of an action can affect whether it qualifies as a judicial function--an action that does not reasonably affect judicial proceedings cannot be judicial, even if a judge performs it.

Of course, judicial immunity is not the only hurdle the girl faces. Benitez is a federal judge, so any damages action falls under Bivens--and we know what that means. This presents a new context and thus an extension of Bivens since SCOTUS never allowed a claim against a federal judge. And the usual special factors will counsel hesitation before allowing the action--Congress never created a cause of action, the judicial-complaint system allows for alternate remedies, and a Bivens court will not want to chill other judges in managing their courtrooms in the future. And after Bivens comes qualified immunity and the absence of any precedent clearly establishing that judges should not order the handcuffing of courtroom observers without probable cause and for no legitimate judicial reason. Is the violative nature of this as obvious as leaving a detainee in a cold, feces-strewn cell or placing a prisoner on a hitching post for 7 hours? Who knows.

So Lubet is right that civil damages remedy are unlikely. But judicial immunity is the tip of that iceberg.

Update: Steve responds:

The leading SCOTUS case is Mireles v. Waco, 502 U.S. 9 (1991), which I considered when writing the essay (space limitations did not allow me to get into it). Mireles holds there is no immunity for actions taken in the complete absence of all jurisdiction. But the trial judge in Mireles had ordered the abusive seizure of a public defender who had missed a court call, and SCOTUS found that was not beyond all jurisdiction. I could be wrong, but my conclusion was that Benitez likewise had some jurisdiction over spectators in his courtroom, and especially over someone who had been invoked by the defendant as a reason for leniency – and thus as sort of a witness. She was in the courtroom to influence the outcome. Puente told the court that his daughter was in danger of drug use, so the judge had some jurisdiction to question or interview her about it, if only to determine whether to believe Puente’s assertion. Of course, his questioning was abusive, but that alone does not defeat judicial immunity.

Well, I would prefer being wrong about that, but as the abstract of the Mireles opinion put it, “That he may have made a mistake or acted in excess of his authority does not make the act nonjudicial.”

My reply (hey, my blog, my final word): We might distinguish Mireles because the order to the bailiff had a closer connection to courtroom management--the judge needed the attorney to get to court for things to proceed. I agree that Benitez could have questioned the girl, even in an abusive or threatening fashion; that would be judicial. Handcuffing her--for the purpose of teaching her a lesson rather than for determining whether to believe the defendant as part of the proceeding--is a difference in kind.

Finally, the cases distinguish actions "in excess of authority" from actions "in the clear absence of authority;" the former maintains immunity (as in Mireles), but the latter does not. Steve makes the best argument for why this is the former--she was there to influence the outcome of a proceeding and the judge can question that attempt. But the judge's statements of his purpose, to me, push this into the latter.

To be clear, I am not saying Lubet is wrong about judicial immunity. Only that it is more complex than the typical case of a judge misbehaving while conducting proceedings from the bench.

JOTWELL: Smith on Sohoni and procedural originalism

The new Courts Law essay comes from Fred Smith (Emory) reviewing Mila Sohoni, The Puzzle of Procedural Originalism, 72 Duke L.J. 941 (2023), which explores how originalism has not (yet) come for constitutional doctrines in civ pro, such as personal and subject matter jurisdiction.

It's all about the precedent

Jonathan Adler comments on universal vacatur in the student loan case. He gets at the fundamental (and overlooked) insight in this debate: The prospective non-party effects of a decision arise from precedent, never from the judgment. SCOTUS does not issue (or affirm) universal injunctions; its opinion affirming a particularized injunction in Case₁ binds other courts in future cases involving similar issues. The DC Circuit does not issue universal judgments; its opinion in Case₁ binds the circuit in future cases involving similar issues (where, Adler argues, Congress gives the D.C. Circuit exclusive jurisdiction). To the extent that disables regional circuits from imposing broader consequences, Congress chose that effect by creating a regional and hierarchical judiciary.

Departmentalism (not mentioned in the arguments or in Adler's piece) makes this compliance practical rather than legal. The executive follows precedent (at least within the circuit) because it chooses to do so, knowing it will otherwise lose when non-compliance returns to the D.C. Circuit.

Florida redefines defamation law

Continuing my discussion of horrible new Florida laws. Rocky and I discussed DeSantis' 2022 never-reduced defamation-reform plan. It has been introduced in the current session. I describe some of the provisions after the jump.

Two things remain from the original proposal (and why we discussed it in our SB8 articles): The bill has serious and obvious First Amendment defects (many First Amendment people would call it "blatantly unconstitutional"). And those constitutional defects cannot be raised or adjudicated in offensive pre-enforcement litigation, because they define the elements of a private right of action for damages; speakers must sue and raise the First Amendment as a defense. Some defamation defendants might have the option of removing the private action to federal court on diversity grounds, an option unavailable to SB8 defendants.

Here are the bill's lowlights, all of which should raise serious First Amendment problems.

• Statewide (or near-statewide) venue for defamation actions. One of the key ways SB8 supposedly stacked the deck.

• Fee-shifting for prevailing defamation plaintiffs, plus removing defamation action from offer-of-judgment fee-shifting. This runs against the trend of granting fees to prevailing defendants to deter performative defamation actions (even absent full application of a state SLAPP in federal court).

• Limits on when someone can become an accidental, involuntary, or limited-purpose public figure. In particular, non-elected public officials (read: cops)  do not become public officials solely by virtue of employment and no one becomes a public figure by denying accusations of wrongdoing. This is enables police officers involved in excessive-force incidents to use defamation suits to silence critics--they can go on a media tour to deny the allegations and neither their government job nor media access renders them public figures.

• Identifies situations in which actual malice is presumed. These include relying on "unverified anonymous reports," repeating something that is "inherently implausible," and failing to validate. The irony, of course, is DeSantis seeks to target the people who picked on Nick Sandmann, Kyle Rittenhouse, etc. But this language is more likely to enable claims by Dominion against election deniers and other conspiracy theorists who repeat nonsense that only a crazy person or reckless person could believe.

• An allegation that someone discriminated on all sorts of bases constitutes defamation per se, with statutory damages of $ 35k. This should not fly because such an allegation or report of an allegation may be opinion or hyperbole, either of which is protected.

• Where that allegation of discrimination is because of sexual orientation or gender identity, a plaintiff cannot prove truth if the defendant relied on religious or scientific beliefs. This exacerbates the viewpoint-discriminatory nature of most defamation. But it shows how the accusation of discrimination is non-provable opinion--both involve competing, non-falsifiable "beliefs" rather than facts. Nevertheless, it may have a chilling effect in reporting and reporting on widespread discrimination--especially around LGBTQ+ status--in the state.

• A statement by an anonymous source is presumptively false. And where the defendant refuses to disclose the identity of the anonymous source, the plaintiff (including a public figure or official, it appears) need only prove negligence.

As I said, each bullet point will draw serious First Amendment scrutiny and many should be declared invalid. Much depends on how much of the First Amendment defamation edifice is constitutionally compelled. That is, how much leeway does a state have to define the scope and application of actual malice in its defamation law and what limits does the First Amendment impose from above. For example, can a state shift the burden to prove truth in anonymous-source cases or does the First Amendment place the burden on the plaintiff? Can a state define who qualifies as a public official/public figure required to prove actual malice or does the First Amendment control?

Regardless, it again demonstrates that what Texas did with SB8 was not new; it reflected a specific application of a state's longstanding ability to define torts and private rights of action. Again, decry Florida's blatant disregard for free speech. Do not treat the process as unprecedented or problematic.

Making a hash of pre-enforcement offensive litigation

In Fund Texas Choice v. Paxton, a First Amendment challenge to three sets of Texas laws a purporting to prohibit funding and facilitating legal out-of-state abortions--SB 8, HB 1280 (a trigger law that took effect 30 days after Dobbs), and pre-Roe zombie laws. Some blame for the hash rests with justiciability doctrine, some rests with the district judge.

To demonstrate the hash, I will identify the key legal or mixed principles, then identify the court's holding in the case, then show where (I believe) it goes off the rails.

Legal Principles and Findings:

    • No public enforcement of SB8.

    • The attorney general lacks power to enforce pre-Roe laws; enforcement rests with local DAs. Nevertheless, Paxton made numerous public statements about his intent to enforce those laws.

    • The attorney general has the power to enforce HB 1280 and made numerous statements indicating an intent to enforce the law with respect to out-of-state abortions.

    • HB 1280 has no extra-territorial effect and the attorney general's public-but-informal hints and suggestions, falling short of a full statement of intent, do not overcome the law's text.

    • Texas repealed its pre-Roe laws by implication. Based on binding Fifth Circuit precedent and undone by legislative findings in SB8, the post-Roe regulatory scheme for legal abortion cannot co-exist with the pre-existing bans on virtually all abortions.

    • The court never analyzed whether enforcement of the pre-Roe laws violates either the First Amendment or the right to travel.

Conclusions:

    • Claims against Paxton dismissed for lack of subject matter jurisdiction based on lack of standing and sovereign immunity. Although the court does not specify, it appears to be for lack of standing and/or sovereign immunity. Because Paxton cannot enforce any of the challenged laws against plaintiffs' desired conduct (he cannot enforce pre-Roe laws and cannot enforce HB 1280 as to the plaintiffs' desire conduct), he is not a responsible executive officer and plaintiffs lack traceability and redressability.

    • Preliminary injunction granted against several named local DAs (although the court has not certified the defendant class of all DAs) from enforcing pre-Roe laws as to funding or facilitating out-of-state abortions.

Why this is all such utter nonsense:

    • Bickel defended standing and the "passive virtues" as eliminating unnecessary constitutional adjudication. But consider how much and how detailed the adjudication necessary to dismiss this case for lack of jurisdiction--to say that the court lacked the power to consider the constitutional validity of Paxton's conduct or the scope of the plaintiffs' constitutional rights. The court analyzed the attorney general's power under three sets of laws, the effect of the attorney general's grandstanding and bumptious threats, and the extra-territorial scope of new state law. But the real meaning of these conclusions (putting aside their normative correctness) should be substantive--Paxton's conduct does not and cannot violate the plaintiffs' rights because he lacks the power to impose any legal consequences on their conduct. No constitutional violation means no injunction. But the court had jurisdiction to analyze all of this.

    • Were this accurately treated as merits, plaintiffs could tailor a lawsuit such as this one. Paxton has been running around hinting about enforcing HB 1280 extra-territorially, even if he lacks the power to do so. It would benefit the constitutional system if plaintiffs could react to those hints by obtaining an express declaration that he cannot do so, whether because he lacks power under state law or because doing so would be constitutionally invalid. Instead, they have that analysis and those determinations, but without legal effect. (It might have precedential effect, as it is essential to the holding; but district courts cannot create binding precedent and jurisdictional holdings tend to carry less substantive precedential force as to any underlying constitutional issues.

    • The court drops the following footnote in dismissing the claims against Paxton:

While the Court dismisses Plaintiffs’ H.B. 1280 claims without prejudice, it recognizes that there may be certain situations where the statutory analysis changes. For example, the analysis might change if a local prosecutor imminently threatens charges for funding out-of-state abortions or an opinion from the Attorney General’s office declares it illegal. 

The court did not dismiss the claims against Paxton for lack of imminence, so I do not see why imminence has entered the mix. He dismissed them because HB 1280 unambiguously does not allow extra-territorial application. I do see why either of those events changes that conclusion. The court recognizes that Paxton is hinting at extra-territorial enforcement "for the deliberate purpose of deterring funds from facilitating out-of-state abortions." But if those hints and threats do not overcome unambiguous text, a local DA's more imminent and specific threat or a formal AG opinion should not do so. Either the executive position can overcome unambiguous text (in which case these claims against Paxton should proceed, based on his posturing) or they cannot (in which case the footnote is wrong).

    • If pre-Roe laws were repealed by implication, the claims against the DAs should have been dismissed on the same bases as the claims against Paxton. Repealed laws no longer exist as law, leaving the DAs nothing to enforce. A court cannot enjoin an executive from doing something he lacks the authority to do. DAs can no more enforce pre-Roe laws than Paxton can enforce HB 1280--in either case, no existing state law prohibits funding or facilitating out-of-state abortions and thus the target executives have nothing to enforce. In fact, the argument for lack of jurisdiction as to the DAs is stronger than as to Paxton. Paxton has an extant law he could enforce in the abstract, but the court interpreted it to be unenforceable in the current circumstances; the DAs have nothing but air.

    • Making even less sense, the court uses implied repeal as the sole basis to find likelihood of success on the merits and to grant the injunction. The court never discusses whether the pre-Roe laws violate the First Amendment or the right to travel; that the laws were repealed by implication makes them invalid and unenforceable.

    • The last point arises from the court treating impliedly repealed laws differently from expressly repealed laws, a unique category subject to unique analysis. But that framing makes no sense. Had the legislature repealed pre-Roe laws, the court would have dismissed for lack of standing (what I think should be merits, but same result); again, the lack of a law on the books leaves nothing to enforce and the court cannot enjoin the executive from what he cannot do. Had the law not been impliedly repealed, it would be a Dobbs-dezombified law; the court must consider whether the living law applies extra-territorially (the court says it does) and whether it violates the First Amendment or the right to travel (the court never says). Instead, impliedly repealed laws create a third thing--extant (thus potentially enforceable, giving plaintiffs standing) but per se invalid (thus obviating analysis of their constitutional validity). I have never seen anything like this and the court does not explain or justify this category of law.

How the case should have been resolved:

    • The court should have reached the merits as to Paxton enforcing HB 1280, a live law. There ought to be consequences for executive saber-rattling, even when ungrounded in state law, having the purpose and effect of deterring conduct that is lawful under state law and constitutionally protected. The court should have addressed whether the law, if applied extra-territorially as Paxton has threatened, violates the Constitution.

    • If pre-Roe laws were impliedly repealed, it should not have enjoined the DAs. If implied repeal remains an open question, then the court should have analyzed their constitutional validity before entering the injunction.

    • Someone in the comments to Volokh's post on the decision suggests the Fifth Circuit will certify the question of implied repeal to the Texas Supreme Court. That may be a good idea. But the district court's analysis cannot stand regardless of that court's decision. If the laws were impliedly repealed, the district court erred in enjoining enforcement. If the laws were not impliedly repealed, the district court never addressed or resolved the substantive constitutional issue, which the reviewing court ought not do for the first time.

Pretty bad all around.

JOTWELL: Thomas on Adams, et al. on open justice

The new Courts Law essay comes from Suja Thomas (Illinois) reviewing Zoe Adams, Abi Adams-Prassl & Jeremias Adams-Prassl, Online Tribunal Judgments and the Limits of Open Justice, 42 Legal Stud. 42 (2022).

Judge cannot certify appeal of prior order by prior judge in same case

From In re Sensipar Anitrust Litigation:

District Judge Leonard Stark issued an interlocutory decision. He was elevated to the Federal Circuit five days later and the case transferred to a different district judge, Colm Connelly. The defendant moved, unopposed, for a § 1292(b) certification for immediate appeal. Connelly holds he lacks authority to certify. Section 1292 speaks of a "judge" issuing a decision and certifying the § 1292(b) elements, which means the same judge must issue the order and certify; a different judge cannot certify, including in the same case. The key is that § 1292 does not use judge and court interchangeably; thus while both judges are the "court" hearing the case, they remain different judges for one order.

The textual point is well-taken, I suppose. At the same time, this cannot be the right answer. I know of no other statute or rule that gives a judge less-than-full control and power over a transferred case than had she been assigned the case from the outset. The answer may lie in a different textual point.

Section 1292(b) says that when the judge is of the opinion that an interlocutory order satisfies the elements of (b) and warrants immediate review, " he shall so state in writing in such order." In other words, the statute contemplates that the parties and court work out certification in advance and one order will resolve the underlying issue and certify for appeal. On that framing, this problem--Judge₂ certifying Judge₁'s order--never should arise because Judge₁ adjudicates and certifies in one order. Thus, Judge Connelly's interpretation, if correct, has no adverse consequences because it never arises.

In practice, however, parties argue appealability and the court certifies after the the target order. That happened here--Judge Stark issued the underlying order on March 11, 2022, Judge Stark was elevated on March 16, the case was reassigned to Judge Connelly, the parties briefed the certification motion, and Connelly decided the motion 11 months later. This practice is inconsistent with § 1292(b), to the extent the judge certifies in a subsequent order rather than "in such order" to be appealed. The court's interpretation, if right, now has absurd consequences--certification becomes impossible if something unexpected, even tragic, requires the case be transferred between the underlying order and the certification decision. And certification becomes impossible not only in a case such as this  (eleven months lapsed between original order and ruling on certification), but in a case in which things move quickly (Order on Monday, Judge₁ dies on Tuesday, case transferred to Judge₂ on Wednesday, certification decision on Thursday).

But we can apply textualism to a different piece of text. Taking (b) seriously and reconciling text and practice, a judge can certify subsequent to the underlying order--but must do so not through a new-and-separate order but by amending the original order to add the (b) findings. The power to alter or amend an order rests with the court, meaning any judge assigned the case can alter or amend any order, including the prior judge's order. Connelly thus could have issued an amended version of the March 11, 2022 order, fully repeating and adopting Stark's conclusion while adding the (b) certification. This makes the amended order of February 2023--containing the content of the March 11 decision--an order that Judge Connelly made and therefore can certify for interlocutory appeal.

I am curious what happens next. The denial of certification is obviously not final and appealable. But a determined defendant might seek mandamus on the issue, asking the Third Circuit to order Judge Connelly to grant--or at least consider, which he has not done--certification, because his failure to do so is clearly erroneous

JOTWELL: Kalajdzic on Tang on copyright class actions

The new Courts Law essay comes from Jasminka Kalajdzic (Windsor), reviewing Xiyin Tang, The Class Action as Licensing and Reform Device, 122 Colum. L. Rev. 1627 (2022).

Visitors sue Air and Space Museum, encounter Fed Courts doctrine?

Visitors to the Air and Space Museum sued the museum, agency, and several Doe officers, alleging that the officers forced them to remove hats with the logo "Rosary Pro Life" while visiting the museum; they allege free speech, equal protection, and RFRA violations and seek damages and injunctive relief. Eugene Volokh reports that the Museum admits this happened and that it should not have. He also argues that the free speech analysis is obvious here--the museum is a non-public forum in which officials can make reasonable content-based distinctions but not viewpoint-based distinctions (such as not promoting "equality").

But I am not sure we reach those merits:

    • Plaintiffs should lack standing for an injunction. The plaintiffs cannot show this will happen again in the immediate future. Not only is it unlikely they can show concrete plans to return to the museum. And they cannot show they will suffer this injury if they do return, given the museum's response and the seeming randomness of the officers' conduct.

    • This is an extension of Bivens--the Court has never allowed a free-speech claim. And the usual special factors arise--Congress should create causes of action and has not done so and, post-Egbert, agency disciplinary-complaint procedures offer sufficient mechanism for deterring misconduct. This is not a national-security case so that over-arching factor is absent. But lower courts emphasize the new single question of "Isn't Congress is better suited to balancing the costs and benefits of causes of action?" (to which the answer is always "yes") to reject actions outside national security.

    • RFRA provides a cause of action for suits against government officials, so plaintiffs do not need Bivens for their religion claims. But plaintiffs must show this was religious rather than speech discrimination--does the word Rosary on the hats mean the officers knew the message was religious and forced them to remove the hats because of that religious (as opposed to political or ideological) message?

    • If this is religious discrimination and/or they convince the Court that no special factors counsel hesitation, they must overcome qualified immunity. There is almost certainly no case law about making someone remove a hat because of its religious or political message in a museum. The court must fall back on general First Amendment principles, the sort of high-generality analysis courts usually reject. It might be interesting to see how the court uses the museum's mea culpa--does that show that it was clearly established that officers could not make visitors remove hats and other clothing because of the message?

Younger strikes again

Florida (naturally) leads the pack of red states trying to stop (likely First Amendment protected) drag shows. It is pursuing the Orlando Philharmonic Foundation in an administrative action for producing "A Drag Queen Christmas" in December; it seeks to revoke its business and alcohol licenses, premised on a drag show involving lewd, lascivious, and sexual activity. The state is threatening a similar action against the Broward County Performing Arts Center for a similar program. The Foundation should win, because drag show should be constitutionally protected, including for children. The pleading includes photos of the event, but it is hard to take the pleading's descriptions of the event seriously when comparing it to the photos.

But the case offers yet another example of the commonality of defensive litigation, including where the constitutional invalidity of the state's enforcement efforts is obvious. An administrative proceeding, subject to state judicial review, triggers Younger abstention; this case squarely fits the second Sprint category of a quasi-criminal civil action. And while politically motivated and designed to score cheap populist points (towards a presidential run), I doubt this qualifies for Younger's bad-faith exception.

More on Warren-DeSantis and the court's ill-advised analysis

I wrote last week about the district court decision in the lawsuit between the Hillsborough (FL) County DA and Florida Governor Ron DeSantis, arising from the latter suspending the former. I argued that the court made two legal mistakes: 1) Framing the case as DeSantis violating Warren's First Amendment rights in considering protected speech where he would have reached the same conclusion based on something other than protected speech and 2) Pronouncing that the suspension was inconsistent with state law while refusing on Eleventh Amendment grounds to issue an injunction ordering reinstatement. I also suggested Hinkle--whether intentionally or otherwise--provided Warren a weapon in the political controversy.

That last thing happened more quickly than I anticipated. Warren last Wednesday sent (and publicized) a letter to DeSantis urging the governor to voluntarily reinstate him. Warren frames the situation as follows: The court found as a matter of fact and law that the suspension violated the U.S. and Florida constitutions. Although not ordering Warren's reinstatement "in deference to federalism," the court called on DeSantis to "easily set [that violation] right" by recognizing that "the facts matter" and that he should not have removed Warren. DeSantis thus should follow his oath and obey the law by rescinding the suspension. This is a political stunt (as was the entire lawsuit), leading with the court's words as if they provide the final answer on these issues.

I explained where the court went wrong. But Warren's tendentious framing raises that error to another level.

The Eleventh Amendment (as courts apply it) does not create discretionary deference to federalism allowing a court to offer binding legal conclusions while declining to issue any legal remedy. It imposes a jurisdictional bar to adjudicating state-law issues. The court had no power or basis to consider the state-law validity of the suspension. It dismissed Warren's state-law claim as improper under § 1983/Ex parte Young. Nor were the state-law issues built into the federal issues. Adjudicating the First Amendment claim did not turn on the accuracy of the state law grounds--for purposes of whether DeSantis' decision rested on something other than Warren's protected speech, the question is whether DeSantis believed Warren adopted blanket non-prosecution policies, not whether DeSantis' beliefs were true or accurate.

Warren's letter treats the court's state-law analysis as akin to a declaratory judgment--the court issuing a jurisdictionally appropriate order that DeSantis violated state law, but finding that declaration sufficient and declining to issue further relief in deference to competing values. That is, the court provided a valid statement of law designed to persuade the defendant to change his behavior going forward, while reserving the "strong medicine" of an injunction for discretionary reasons and with faith that DeSantis will comply with the decision. DeSantis must "follow the law" as the court declared it.

This is wrong.  The Eleventh Amendment strips courts of jurisdiction to issue all remedies, not only injunctions. The court had no more power to issue a DJ based on violations of a state-law rights than to issue an injunction based on a violation of state-law rights. That bar precludes any consideration of state law or whether DeSantis' conduct comported with the state constitution--the court acted beyond its power in making these pronouncements and they should have no legal force. Again, this goes beyond dicta--it is a court speaking words without the power to act as a court.

But those words provide Warren's first line of attack in the press and in politics.

JOTWELL: Shatzman on Fogel, Hoopes, & Liu on diversity in clerkship hiring

The new Courts Law essay comes from guest Aliza Shatzman, reviewing Jeremy Fogel, Mary Hoopes, and Goodwin Liu, Law Clerk Selection and Diversity: Insights from Fifty Sitting Judges of the Federal Courts of Appeals.

Jack Phillips loses on defense, no one cares

Jack Phillips and Masterpiece Cakeshop provide the response to complaints about SB 8 (and other "vigilante federalism" laws) that resist pre-enforcement offensive federal-court challenge and consign rights-holders to defensive litigation in state court--expecting the state court to properly vindicate federal rights or hoping for SCOTUS review at the end of the multi-stage process.

Phillips finds himself in that position, facing a private civil action under Colorado law from a transgender customer denied a custom cake. Phillips lost in the trial court and the court of appeals affirmed, concluding that the cake (pink on the inside, blue on the outside) carried no intrinsic message apart from how the customer planned to use it (a celebration of the anniversary of her m-to-f transition).*

[*] And Masterpiece did not know about that use when the customer ordered the cake and the store initially agreed to make it.

Phillips believes his constitutional rights are as obvious and as violated as those seeking reproductive care in the face of SB8 or trans athletes seeking to compete. Yet no one complains about Autumn Scardina using civil litigation against his (perhaps) protected conduct or acting as vigilante against Phillips. The difference remains that the people opposing SB8 and other vigilante laws disagree with his legal position and do not mind people suing him into oblivion. Procedure cannot turn on such substantive differences.

On the merits, this case bolsters my thoughts after the 303 arguments: These cases superimpose a complicity element on compelled speech. The messages made by the challengers--"Jack and Jack are getting married," "pink-and-blue cake"--carry no political message. It is what the customers do and say with that message after it is made--something untouched by the challengers--that matters. So the First Amendment argument must be that an anodyne, identical message is put to an end with which I disagree. That differs from the core compelled-speech case.

Bizarre (and arguably advisory and ultra vires) opinion in Warren v. DeSantis (Slight edit)

The case arises from Florida Governor Ron DeSantis suspending Hillsborough County (Tampa) State's Attorney Andrew Warren. The court held that DeSantis considered six things in suspending Warren--three impermissible under the First Amendment and three permissible under the First Amendment. DeSantis would have suspended Warren based on the latter permissible grounds had he not considered the former impermissible grounds; therefore Warren's retaliation claim fails under Mt. Healthy. DeSantis violated Florida law in suspending Warren, because those federally permissible grounds were impermissible under state law, because the facts did not show incompetence or neglect-of-duty. But the Eleventh Amendment* prohibits federal courts from granting relief against state officials for state-law violations. Thus, although the court makes a big production of announcing that DeSantis violated state and federal law, it grants no remedy and dismisses Warren's claims.

[*] Really the limits of § 1983, but that ship sailed.

This is a bizarre decision.

• I doubt it is proper for the court to say DeSantis "violated the First Amendment." Constitutional violations occur with adverse enforcement action, not with thoughts or ideas not acted upon. The adverse action here was suspending Warren. If DeSantis would have taken that adverse action regardless of anything related to Warren's protected speech, he did not violate Warren's constitutional rights, at least as we define the scope of the First Amendment in this context. Compare a racist cop who arrests a Black person on a charge for which he has probable cause; the arrest is valid because of probable cause, regardless of any racist ideas or statements the officer makes. We may disagree with that doctrine. But it, for the moments, defines when a government official violates someone's constitutional rights.

• The court should not have declared the state-law validity of the firing. This goes beyond mere dicta or even an advisory opinion. Warren brought a state law claim, which the court dismissed under Pennhurst (again, better if § 1983, but whatever). The propriety of the state-law reasons were not before the court. Worse, if the Eleventh Amendment, as elaborted in Pennhurst, strips courts of jurisdiction over state-law issues, the court pronounced on issues beyond its jurisdiction.

• I said the court should have abstained under Pullman and Hinkle's approach to the opinion confirms this. The case always turned on the suspension's state-law validity; the First Amendment provided a sideshow. The court did what Pullman seeks to avoid--passed on unnecessary federal constitutional issues in the face of controlling state-law issues.

• It is hard not to read this as a political shot for Warren to use in the media. He can wave the opinion and say a federal court backs his view that DeSantis ran roughshod over his First Amendment rights. It also represents a political shot at the Florida Senate, which will hold a "trial" on the state-law propriety of the suspension, affirming DeSantis' decision or reinstating Warren. Hinkle has created a detailed legal and factual record, particularly finding that DeSantis' insistence that Warren had a blanket non-prosecution policy was nonsense and that he knew (or at least should have known, had he looked) it was nonsense. This helps Warren in the press and in the public should he lose before the Senate. Warren can compare this opinion to any Senate decision finding the suspension warranted and use it to argue that the Florida Senate made an incorrect, politically motivated decision--"see, we know the Senate made a politically motivated decision, because here is a federal judge showing why the suspension violates federal state law." Hinkle hints at this motive by referring to the "heavily partisan Florida Senate."

GEICO can intervene over sex-in-car case

The story of the woman who sued her former partner for infecting her with HPV during a sexual encounter in his car gained attention in June. I offered the case as the latest example of journalistic malpractice in covering the court, where stories snickered about the prospect of a multi-million judgment over car sex, ignoring that the case involved a narrow procedural question--whether GEICO should have been allowed to intervene in the state action to affirm the arbitration award, without (at this point) considering whether sex is an ordinary use of a car triggering coverage..

The story returned to the news last week, when the Supreme Court of Missouri ruled that the trial court erred in denying intervention. GEICO moved within 30 days of receiving notice that it (rather than its insured) was the litigation target and before the trial court entered judgment; state law grants intervention as of right.

The case returns to the trial court, with GEICO able to argue that it is not required to cover. GEICO's federal DJ action, also seeking to avoid coverage, remains pending. Both courts must decide whether sex constitutes an ordinary-and-expected use of a car triggering insurance. Let the snickering resume.

JOTWELL: Tidmarsh on Hershkoff & Norris and democracy and jurisdiction

The new Courts Law essay comes from Jay Tidmarsh (Notre Dame) reviewing Helen Hershkoff & Luke Norris, The Oligarchic Courthouse: Jurisdiction, Corporate Power, and Democratic Decline, Mich. L. Rev. (forthcoming 2023), exploring how corporate power influences jurisdictional rules in ways that enhance corporate power and limit democracy.

No state standing in SB8 suit

Press release on the judge's ruling from the bench that standing requires a plaintiff directly affected by the provision of abortion services. This is remaining lawsuit of the three filed by "colorful" actors; the plaintiff is Felipe Gomez, a suspended Illinois lawyer who purports to support abortion rights.

This is largely moot, since Texas post-Dobbs banned abortion through criminal penalties and government enforcement. But it provides a nice coda to the SB8 story that has ended with a whimper. Rocky and I called the result, although we argued that Texas has a history of statutorily authorized private enforcement that complicates the analysis more than in federal court. It also reveals an irony in the debate over "bounty-hunter" laws--legislative efforts to deter disliked-but-constitutionally-protected conduct through the chill of random private litigation fail in the face of state judiciaries that interpret their constitutions to ape Article III. Further irony: California--which tried to create a "blue-state SB8" on firearms--allows broader "any person" standing than Texas (at least according to one trial judge) and other states that are trying this.

Uvalde lawsuit

Complaint here. I have been thinking about this inevitable lawsuit and the problems it will face--and I am not sure this complaint, as pleaded, avoids those problems. The main claim is substantive due process/bodily integrity. There are two ways to plead this claim based on third-party harms--state-created danger and special relationship. The complaint alleges both and both encounter problems.

As to the former, the Fifth Circuit (so far) refuses to recognize state-created danger as a basis for due process liability (the only circuit never to do so), although the complaint does not mention this fact.Maybe this is the case that would prompt a change, but I doubt it. So to the extent they premise liability and remedy on "Uvalde officials did a horrible job and allowed Salvador Ramos to do what he did," that theory is unavailable in the Fifth Circuit.

As to the latter, special relationship does not apply between schools and teachers and students, because their presence in school (unlike, e.g., prisons) is not involuntarily coercive. And law enforcement does not have a special relationship with the public or a general duty to protect. Plaintiffs offer two ways around this. First, by showing up and establishing a perimeter, police created a special relationship that did not previously exist. This raises tricky line-drawing problems. The theory is that police lack a general duty to protect but at some point they take enough affirmative steps to establish a special relationship and create that duty to protect--where, exactly, is that point? But this seems to be the best thing they have. The second theory is that police affirmatively prevented parents and others from helping out while police did nothing. But this does not describe inaction within a special relationship; it describes affirmative action to worsen a third-party-harm situation, which sounds in state-created danger (still unavailable in the Fifth Circuit) rather than special relationship.

Plaintiffs include claims for municipal liability against the school district for a custom or practice of noncompliance with safety regulations and against the city for failing to follow existing active-shooter protocols and failing to train/supervise officers on those protocols, which they "magnificently failed" to follow. Two things. First, there is an interesting puzzle here over the concept of policy and policymakers Uvalde had protocols--formal policies established by government policymakers--that police ignored; municipalities avoid liability when they can show that officers ignored or acted contrary to official policy. Plaintiffs attempt to avoid that by alleging that the acting police chief, the policymaker for law enforcement, created new policy by ignoring existing policy. Second, municipal liability depends on an underlying constitutional violation and injury to which municipal policy, custom, or failure-to-[blank] contributed. The immediate cause of the injury is the private shooter, which returns us to state-created danger (policies and failures as affirmative acts enhancing the shooter's ability to kill) not recognized in the Fifth Circuit or to special relationship that, as described above, does not fit seem to fit here.

Finally, they ask for an injunction basically compelling the school and the city to get its shit together as to school safety and active-shooter responses. They also ask to certify a class to get around the obvious standing problems. We will see if that works, given the unlikelihood of another shooting situation, no matter how bad the city's customs and practices.

I am putting the final touches on the third edition of my civil rights treatise, including new case-based problems. I may need to add this one.